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THE LIBRARY OF THE 

UNIVERSITY OF 

NORTH CAROLINA 




THE COLLECTION OF 

NORTH CAROLINIANA 

PRESENTED BY 

Richmond Co. Clerk of Court 



C3U7.9 
B2? 



UNIVERSITY OF N.C. AT CHAPEL HILL 






00033977046 



This book must not 
be taken from the 
Library building. 



Form No. 471 



Digitized by the Internet Archive 

in 2010 with funding from 

Ensuring Democracy through Digital Access (NC-LSTA) 



http://www.archive.org/details/codeofcivilproce1868nort 



THE CODE 



OF 



Civil Procedure 



OF NORTH CAROLINA. 



TO SPECIAL PROCEEDINGS. 



PREPARED BY 

Victor C. Barringer, Will: B. Rodman, Albion W. Tourgee, 

Commissioners of the Code, 

ATO PUBLISHED CXDEB THEIB ST7PEEVISIOX, ACCOEDIXS TO LAW. 



~*5r- 



RALEIGH : 
N. PAIGE, STATE PRINTER. 

1868. 



PREFACE. 



In submitting that portion of the Code of Civil Proce- 
dure which has been prepared and adopted, to the pro- 
fession and the people of the State, the Commissioners, 
recognizing and regretting its deficiencies, beg leave only 
to call attention to the very brief time which has been 
occupied in its preparation and publication. By the 
conditions imposed by the Constitution and Act of Ap- 
pointment, the Commissioners were compelled to report 
a Code of Civil Procedure as well as a General Analysis 
of the Codes projected by them, to the first session of 
the General Assembly. In addition to the duties, thus 
imposed, they were requested, by resolution of one or 
both Houses of the General Assembly, during the late 
session, to prepare several bills upon subjects connected 
with necessary amendment of our laws, to adapt the new 
machinery of the State Government to its work. 

The actual work of preparation of the Code can hardly 
be said to have commenced until the inauguration of the 
State Government, July 3rd, 18G8. Since that time, the 
Commissioners have not only prepared and published the 
present volume, but have prepared and submitted nearly as 
much more, for the consideration of the General Assembly. 
The necessity for^this haste no one regrets more keenly than 
the Commissioners, yet they hope it will not be without 



iv PREFACE. 

good, in its final results, as it will render possible a com- 
plete and thorough revision and amendment of the Code 
of Civil Procedure, before the final publication of the 
Codes projected by the Commission. It is hoped that the 
entire Bench and Bar of the State, will unite with the 
Commissioners in endeavoring to perfect and harmonize 
the system of Procedure now introduced, and made neces- 
sary by the Constitution, by forwarding to them such 
amendments as may occur to them, in practice under it, as 
necessary or valuable. Having fulfilled the conditions 
of the Constitution in regard to the work which was 
required to be reported to the first session, we can 
assure the profession that no pains will be spared to 
make the future work of the Commission as complete as 
time and assiduous labor can render it. 

It is expected that the volume will be in the hands of 
the profession and the officers of the courts by the first 
of September, or in less than ninety days from the time 
its preparation was commenced. 

The Ordinance of the Convention of 1865 and 1866, in 
regard to the jurisdiction of the courts, amended by the 
Convention of 1868, is for the first time published in its 
amended form, in this volume, for the convenience of 
public officers and parties interested. 

THE COMMISSIONERS. 

Raleigh, August 25th, 1868. 



AUTHORIZATION. 



EXTKACTS FEOM THE 

CONSTITUTION OF NORTH CAROLINA, ARTICLE IV 



Section I. The distinction between actions at law and suits 
in equity, and the forms of all such actions and suits, shall 
be abolished ; and there shall be in the State but one form 
of action for the enforcement or protection of private rights, 
or the redress of private wrongs, which shall be denomina- 
ted a civil action ; and every action prosecuted by the peo- 
ple of the State, as a party against a person charged with a 
public offence, for the punishment of the same, shall be 
termed a criminal action. Feigned issues shall also be abol- 
ished, and the fact at issue tried by order of court before a 

Sec. II. Three Commissioners shall be appointed by the 
Convention to report to the General Assembly at its first 
session, after this Constitution shall be adopted by the peo- 
ple, rules of practice and Procedure in accordance with the 
provisions of the foregoing section, and the Convention shall 
provide for the Commissioners, a suitable compensation. 

Sec. III. The same Commissioners shall also report to the 
General Assembly of North Carolina as soon as practicable, 
a Code of the laws' of North Carolina. The Governor shall 
have power to fill all vacancies in this Commission. 



Sec. XXV. Actions at law and suits in Equity, pending 
when this Constitution shall go into effect shall be trans- 



vi AUTHORIZATION. 

ferred to the courts having jurisdiction thereof, without 
prejudice by reason of the change, and all such actions and 
suits commenced before and pending at the adoption by 
the General Assembly, of the rules of Practice and Procedure 
herein provided for, shall be heard and determined accord- 
ing to the practice now in use, unless otherwise provided 
fqr by said rules. 



Ordinance of the Convention of 1868, 



APPOINTING CODE COMMISSIONERS. 



Atf ORDINANCE APPOINTING COMMISSIONERS TO PREPARE A CODE OF 
PRACTICE AND PROCEDURE IN THE DIFFERENT COURTS OF THE 
STATE. 

Section 1. Be it ordained by the people of North Carolina 
in Convention assembled, and it is hereby ordained as follows : 
That Victor C. Barringer, A. W. Tourgee and William 
K Rodman are hereby appointed Commissioners, whoee 
duty it shall be to prepare a Code of Practice and Procedure 
in the different Courts of the State, and to reduce into a 
written and systematic Code, the whole body of law of the 
State, or such parts thereof as shall seem to them practicable 
and expedient, and consistent with the provisions of the 
Constitution. 

Sec 2. Be it further ordained, That the Commissioners 
shall divide the Code of Practice and Procedure into two 
parts, the one as a Code of Criminal Procedure, with the 
requisite forms, the other a Code of Civil Procedure, with 
forms thereof. 

Sec. 3. Be it further ordained, That the first division of 
the Code of Law must embrace the laws respecting the 



AUTHORIZATION. vii 

government of the State, its civil polity, the functions of its 
public officers and duties of its citizens. The second must 
embrace the laws of personal rights and relations of property 
and obligations. The third shall define crimes and pre- 
scribe their punishments. 

Sec. 4. Be it further ordained, That the Commissioners 
shall hold their offices for three years ; but the General 
Assembly may continue their term if it shall be deemed 
necessary. 

Sec. 5. Be it further ordained, That the Commissioners 
shall report to the General Assembly at its first session after 
the adoption of this Constitution a general analysis of the 
Code projected by them and the progress made by them 
therein, and shall continue to report at each succeeding 
session of the General Assembly the progress made to that 
time. 

Sec G. Be it further ordained, That whenever the Com- 
missioners shall have prepared the Code, or any portion of 
the same, they shall contract with the printer of the State 
for printing of the same, and cause the same to be distri- 
buted among the Justices of the Supreme Court, Judges of 
the Superior Courts, and other competent persons for exami- 
nation, after which the Commissioners shall re-examine their 
work and consider such suggestions as may have been made 
to them. They shall then cause the Code as finally agreed 
upon by them to be re-printed under the contract as afore- 
said, and distributed to all the Justices of the Supreme Court, 
the Judges of the Superior Courts and Clerks of the Superior 
Courts, thirty days before being presented to the General 
Assembly ; and the Penal Code in like manner to be dis- 
tributed to the Solicitors of the State. 

Sec 7. Be it further ordained, That the Commissioners 
shall from time to time specify such amendments, altera- 
tions and revision of the law as to them may seem necessary 
to carry into effect the provisions of the Constitution, and 
report the same to the General Assembly. 

Sec 8. Be it further ordained, That each of said Commis- 
missioners shall receive a salary of two hundred dollars per 



viii AUTHORIZATION. 

month, while actually engaged in the performance of his 
duties as such. A suitable room in the Capitol shall be 
assigned to said Commissioners as an office, and the neces- 
sary printing and stationery allowed the same. 

Sec. 9. Be it furtJier ordained, That this ordinance shall 
be in force from and after its ratification. 

Ratified this 13th day of March, A. D., 1868. 

CALVIN J. COWLES, President 
T A. Btrxes, Secretary. 



First Report of the Code Commissioners. 



Office Commissioners of the Code 
Raleigh, July 15th, 1868 



•} 



To the General Assembly of North Carolina : 

The Commissioners appointed by the Act of March 13th, 
1868, to " prepare a Code of Practice and Procedure in the 
different Courts of the State, and to reduce into a written 
and systematic code the whole body of the law of the State," 
and who are required by section 5, of said act to " report to 
the General Assembly, at its first session, a general analysis 
of the Code projected by them, and the progress made by 
them therein," beg leave to submit their first 
t 

REPORT. 

Immediately upon the ratification of the Constitution, the 
Commissieners began their labors. It is known to the 
General Assembly that the labor imposed upon the Commis- 
sion is one of the greatest difficulty and responsibilty. 
Nothing within the range of government, can exceed in 
magnitude the task of collecting, condensing and arranging 
the jurisprudence of a people. The structure of government 
and society, and all their complex relations are compre- 
hended within it. Public order, sound morals, all advance- 
ment in the arts of civilization, and all growth in true- 
prosperity, are dependent, in a great degree, upon those 
rules of action, which the state prescribes for the conduct 
of its citizens. 

These difficulties are increased by two considerations: 

1. The present state of the law, and 

2. The present state of society. 



x FIRST REPORT OF THE 

Our language cannot furnish a better picture of the 
present condition of our law, than the words of the first 
modifier ot the common law: 

" Our law is the product of ten centuries, most of them 
filled with tumult and disorder; it is compounded of many 
incongruous elements, Saxon and Norman customs. Feudal 
and Roman law, provincial usages, and the decisions of vari- 
ous and disagreeing tribunals. We jiave Equity law, 
Admirality law, Common [law, as the law of marriage and 
succession, and two kinds of common law, one, contradis- 
tinguished from Statute, and the other, from Equity. Society 
has undergone an entire transformation. The Feudal system 
has fallen to pieces, monarchical institutions have given 
place to republican; land, from being almost inalienable, 
has become an article of daily and hourly traffic, and com- 
merce, once so narrow and timid, embraces the world. 
Personal rights and personal property have assumed an 
importance never before known ; the numberless questions 
arising from modern enterprise, travel, emigration and the 
expansion of industry and commerce have developed new 
departments of jurisprudence ; while the multiplication of 
courts required by the necessities of an increased popula- 
tion, and a traffic constantly augumenting, has produced a 
mass of adjudications, painful for the student to contemplate 
and often difficult if not impossible to reconcile. Thus we 
have arrived at the period of which the Roman historian, 
complained so justly, when " the infinite variety of laws 
and legal opinions had filled many thousand volumes, 
which no fortune could purchase and no capacity could 
digest." 

The changes which the last eight years have wrought in 
the fundamental relations of society, blotting out entirely* one 
of the great classes of personal relations — that of master and 
slave — opening the ears of justice to those who were before 
dumb in her presence, and giving parity of right, authority 
and remedy, to the highest and lowliest; breaking down the 
barriers ot the jury-box, and permitting the landless citizen 
and the man of African descent to come within its bounds, 



CODE COMMISSIONERS. xi 

opening the forum, the bar and the bench, to the honorable 
competition of the colored man— all these mighty changes in 
the relations of the great component elements of society, 
demand equivalent changes in the laws and render the work 
both of the Legislator and the codifier, one of extreme diffi- 
culty and delicacy. The Commissioners are determined to 
perform their portion of it, with conscientious carefulness, 
neglecting no pains, and refusing no aid, which will tend to 
secure as perfect a compilation and revision, as circumstances 
will permit. 

GENERAL DIVISION OF LABOR. 

In considering the duties of the Commissioners, it was 
found that they were comprehended under seven distinct 
sub-divisions as follows: 

I. A Code of Civil Practice and Procedure in the several 
Courts of the State. 

II. A Code of Criminal Practice and Procedure, in the 
several Courts of the State. 

III. A Political Code. 

IV. A Civil Code. 

V. A Penal Code. 

VI. Suggestion of alterations, amendments and revisions 
of laws necessary to carry into effect the Provisions of the 
Constitution. 

VII. A General Analysis of all the Codes. 

THE GENERAL ANALYSIS. 

The general Analysis of Codes, herewith presented, is not 
expected to be in all respects complete or exhaustive. It 
would be almost impossible to present an accurate analysis 
of this work previous to its completion. The one presented 
will, however, indicate the general plan and scope of the 
Code projected by the Commissioners, and contemplated in 
the act of appointment. Such variations will be made from 
this plan as further time, and progress, may show to be 



xii FIRST REPORT OF THE 

expedient. The analysis now submitted, is complete as to- 
all the Codes, except the Code of Penal Procedure, which ■ 
will be offered at some time during the session, if possible. 

ALTERATIONS, AMENDMENTS, &C. 

Under this head, the Commissioners will present to the 
General Assembly, from time to time, such portions of the 
general Code, as they may deem most important, and be able 
to complete. Those already prepared, and only waiting to 
be printed, consist of the powers and duties of Clerks of the 
Superior Courts, of County Commissioners, of the Superior 
Court Clerk as Probate Judge, General Elections, the powers 
and duties of Legislative and Executive officers, the passage 
of Private Acts, Testimony in Legislative Proceedings. 

NECESSITY FOR THESE PROVISIONS. 

The Constitution, providing, as it does, for great and 
numerous changes in the organization of counties, immediate 
provisions must, of course, be made for the transaction of 
county business and the holding of elections. In preparing 
this, every means has been taken by the Commissioners to 
secure the most perfect system compatible with our situation. 
The laws of almost every State have been examined, and 
whatever seemed most simple and expedient, has been 
selected to become a part of our organization. It was con- 
sidered, as indeed is well known to have been the intention 
of the Constitutional Convention, that the very object of 
establishing the Board of County Commissioners, and extend- 
ing the jurisdiction of Justices of the Peace, and conferring 
probate powers upon the Clerks of Superior Courts, was to 
separate the Judicial and Legislative functions of the County 
Court, the latter being conferred upon the Board of Com- 
missioners, and the former upon the Justices and Clerks. 
It was considered too, that the duties of County Commis- 
sioners were strictly defined by section two, Article VII, of 
the Constitution, and that the power of the Legislature 



CODE COMMISSIONERS. xiii 

extends only, to prescribing' the manner in which those duties 
should be performed. No extension of those duties, there- 
fore, has been attempted. 

THE CODE OF CIVIL PROCEDURE. 

It was deemed necessary to provide at once, certain por- 
tions of this Code, in order that Justice might not be delayed, 
and that parties might have adequate remedies in all cases. 
It will be submitted in detached portions, as rapidly as pos- 
sible. It is the desire of the Commissioners to complete it 
before the adjournment of the Genei-al Assembly. During 
the consideration of portions of the Code presented by them, 
the Commissioners will be pleased to offer any explanation 
which may be desired in regard to the same. 

Hoping that by earnest and united effort, order may be 
brought out of disorder, and confusion give way t© certainty 
in our laws, we remain, 

With the utmost respect, 

Your obedient servants, 

W. B. RODMAN, ) 

V. C. BARRINGER, J- Commissioners. 

A. W. TOURGEE, J 

Secretar/. 



xiv SECOND KEPORT OF THE 



Second Report of the Code Commissioners. 



Office of Commissioners of Code, ) 
Raleigh, August 31st, 1868. j 

To the General Assembly of the State of North Carolina : 

The Commissioners appointed by the Constitutional Con- 
vention, to prepare among other things, a Code of" Practice 
and Procedure in civil actions fo* the courts of this State, 
respectfully present the concluding portion of that Code 
with the exception of certain detailed regulations for what 
are called " Special Proceedings, " including: 

1. Application for year's provision of a widow. 

2. The laying off of dower. 

3. Partition of real and personal property. 

4. Foreclosure of mortgage. 

5. Habeas Corpus. 

6. Mandamus. 

7. Laying off property exempt from execution. 

8. Ejectment for the recovery of real estate. 

9. Proceedings in contempt. 

10. Proceedings on impeachment. 

As they understand the law of New York, these proceed- 
ings are only generally, and not fully, provided for in its 
Code of Procedure, but are regulated at least in part, by cer- 
tain statutes contained in the second volume of their Revised 
Statutes. 

Proceedings in these cases, are accordingly left by your 
Commissioners for the present, to be governed by the exist- 
ing Statutes, as far as may be consistently with the provis- 
ions of the Code of Civil Procedure. 

The Commissioners ask leave to submit a few observations 
respecting the circumstances under which their work has 
been performed, and the manner of its performance. 



CODE COMMISSIONERS. xv 

The Constitution required that tl ey should piesent such 
a Code to the Legislature at its present session; it contem- 
plated the abolition, as soon as such a Code could be pre- 
pared, of all existing forms of actions, aiul of all distinctions 
between actions at law and suits in Equity ; Courts ot Equity- 
were immediately abolished by the Constitution. The Com- 
missioners felt the necessity of diligence and even of a 
degree of haste incompatible with the , perfection which 
might reasonably be expected from a longer time for consid- 
eration and review. They commenced their labors as soon 
as they had any assurance that the Constitution would 
become the law of the State, and in two months have pre- 
pared and presented to your body : 

1. An Analysis of the entire Code of the State. 

2. A bill for the government of counties. 

3. A bill defining the powers and duties of Clerk's of the 
Superior Courts as Judges of Probate. 

4. A bill concerning the Jurisdiction of Justices of the 
Peace. 

5. A Code of Civil Procedure for the Superior Courts. 
Besides many others on subjects of great importance, 

requiring both research and reflection, but upon which 
members of your body thought early legislation necessary 
for the public good. Some idea may be formed of the dili- 
gence with which the Commissioners have labored, when it 
is considered that nearly five years elapsed between the 
appointment of the Commissioners to prepare the Revised 
Code, and its publication. In reference to the Code of 
Practice, so great has been their sense of the necessity for 
promptly providing rules for the guidance of the newly 
created Courts, that they have ventured to present it to you 
in piece meal, without reserving to themselves any oppor- 
tunity for reviewing it as a whole. 

Under such circumstances, it is inevitable that imperfec 
tions will be found, which such a review would have readily 
disclosed. We feel authorized, therefore, to ask a generous 
criticism of our labors from [you, as well as from the profes- 
sion, which because it is best able to appreciate the difficul- 



xvi SECOND KEPORT OF THE 

ties of the task, is always disposed to regard in a kindly 
spirit, every effort directed in good faith to improve the 
administration of justice. 

As the Constitution adopted the language of the law of 
New York in its provisions for abolishing the distinction in 
the forms of actions; and as the Code of that State was the 
first adopted, and has been the model on which those of 
many other States have been since framed, the Commis- 
sioners did not hesitate to take the Code of New York as 
the basis of that to be prepared for this State, with such 
modifications as the differing circumstances of the two States 
might make expedient. 

In general, they have endeavored to make such changes 
only as were absolutely commanded or clearly implied in 
the words of the Constitution, or as were manifestly proper. 
To point out the changes in detail, would occupy too much 
of your time. 

The Code we present, forms as nearly as was possible 
under the circumstances in which it has been prepared, a 
consistent whole; there is scarce any part which can be 
altered without involving alteration in some or numerous 
others. We therefore invite your honorable body to pass it 
as it is, and leave to experience, to expose the places which 
require amendment. The Code of New York was adopted 
in 1848 as it come from the hands of the Commissioners, 
and has ever since been undergoing amendments, suggested 
by experience, and so framed by the most able lawyers, as 
to fit in and harmonize with the other parts. 

All can understand the value to a people, of a Code of 
laws, embodying and regulating according to justice and 
reason, the rights and duties of men in all the varying rela- 
tions of life and business; but none but those whose profes- 
sion makes them necessarily familliar with the modes of 
applying those principles to actual transactions, can appre- 
ciate that the machinery for such application is as essential 
to justice as is the recognition of its principles. 

In every Code for the administration of law, much is fixed 
by the laws of the human mind, and is, therefore, essentially 



CODE COMMISSIONERS. xvii 

alike in the practices of all countries; while much also is 
purely arbitrary, and depends for its wisdom, on the habits 
and condition of the people to whom it is applied. 

For example : every man who has a complaint against his 
neighbor, for which he seeks redress, must first summon the 
supposed wrong-doer before some Judge, and must inform 
him of the grounds of the complaint, and the defendant must 
hare an opportunity to answer. 

These things are fixed in justice, and are to be found in 
the practice of all countries. But what shall be the nature 
of the summons, — whether or not the defendant shall be 
arrested and held to bail, the time of notice, the manner of 
service, and a vast number of other details which it is indis- 
pensable for the convenience of all parties shall be prescribed 
by some fixed and certain law, are purely arbitrary, and are 
scarcely ever the same in any two States. It is not so 
important what they are, as that they should be fixed and 
clear and known, and conformable to the business usages of 
a people, their grade of culture and facilities for mutual 
intercourse. . 

We make these general observations to show the views 
which have guided us in the preparation of this Code, con- 
fident, that whatever may be the skill with which we have 
applied them, the views themselves will be received by all, 
as true. 

Detailed regulations for what are called " Special Proceed- 
ings" are not urgent, they being sufficiently provided for, at 
present, by the Code, and by the existing laws; we do not 
propose, therefore, to present those at this session of the 
Legislature. Very respectfully, 

WM. B. RODMAN, 
A. W. TOURGEE, 
V. C. BARRINGER. 



.ANALYSIS 



OF THE 



Code op Civil Procedure 



TITLE I. General provisions in regard to actions. 

II. Superior courts. 

III. General provisions as to civil actions, 

IV. Limitation of actions. 

V. Parties to uivil actions. 

VI. Of the place of trial of civil actions. 

VI T. Manner of commencing civil actions and the 
service of the summons. 

VIII. Of the pleadings in civil actions. 

IX. < >F the provisional remedies in civil actions. 

X. Op the trial and judgment in civil actions. 

XI. Of the execution of judgment in civil actions. 

XII. Of the costs in civil actions. 

XIII. Of appeals in civil actions. 

XIV. Of the miscellaneous proceedings in civil 

t 
ACTIONS AND GENERAL PROVISIONS. ' 

XV. Actions in particular cases. 

XVI. General provisions. 

XVII. Regulations respecting existing suits. 

XVIII. Of the Supreme court. 

XIX. Probate courts'. 

XX. The courts of justices of the peace. 
XX L Fees of clerks and other officers. 

XXII. Of* the printing oe the code of civil pro- 

cedure. 

XX I II. Ratification of statutes composing this code. 



sx ANALYSIS. 

TITLE I. 

GENERAL PROVISIONS. 

£>ec. 8. To what actions these enactments applicable. 
9. Definition of Court ; to mean clerk, when. 



TITLE II. 



SUPERIOR COURTS. 



Sec. 10. Original civil jurisdiction of the Superior Courts. 
11. Terms of the several Superior Courts. 



TITLE III. 

GENERAL PROVISIONS AS TO CIVIL ACTIONS. 

Sec. 12. Forms of civil actions — Distinction between actions at law and 
suits in equity abolished. 

13. Parties designated, plaintiff and defendant. 

14. Actions on judgments when they may be brought. 

15. Feigned issues abolished. 



TITLE IV. 

LIMITATION OF ACTIONS. 

CHAPTER I. 

Actions in General* 

Sec 16. Time of commencing actions in general. 

17. Period of limitation; objection must be taken by answer. 

CHAPTER II. 

Time of commenciu-g actions for the recovery ot real property. 

Sec. 18. When the State will not sue. Thirty years possession. Twenty- 
one years possession under colorable title. 

19. Such possession valid against claimants under the State. 

20. When persons having title must sve, 



ANALYSIS. xxi 

Sec' 21. Proviso in case of judgment for plaintiff reversed, &c. 

22. Seizin within twenty years when necessary. 

23. When adverse possession for twenty years. 

24. Action after entry. 

25. Possession presumed. Occupation when deemed under legal title. 

26. Relation of landlord and tenant. 

27. Persons under disabilities. 

28. Cumulative disabilities. 

29. Railroads, &c., not barred. 

CHAPTER III 

Time of commencing actions other than for the recovery of real 
property. 

Sec. 30. Periods of limitation prescribed. 

31. Ten years. 

32. Seven years. 

33. Six years. 

34. Three years. 

35. One year. 

36. Six months. 

37. Action for other relief. 

38. Limitations to apply to actions by the State. 

39. Action upon an account current; the statute begins to run when. 

CHAPTER IV. 
General provision as to the time of commencing actions. 

Sec. 40. When action deemed commenced. 

41. Exception — defendant out of the State. 

42. Exceptions — persons under difficulties. 

43. Peath of a person entitled before limitation expires. 

44. Actions by aliens ; time of war not counted. 

45. When judgment reversed, &c. 

46. Time of stay by injunction, not counted. 

47. Time during controversy about probate of will, &c, not counted. 

48. Disability must exist when the right of action accrued. 

49. When several disabilities ; all must be removed. 

50. Acknowledgment by partner, &c, after dissolution. 

51. Acknowledgment or new promise must be in writing. 

52. Co-tenants ; when some barred, others not. 

53. This title not applicable to bills, &c, of corporations, or to 

bank notes. 

54. Nor to actions against directors, &c, of moneyed corporations or 

banking associations ; limitation in such cases prescribed. 



xxii ANALYSIS. 

TITLE V. 

l'ARTIES TO CIVIL ACTIONS. 

Sec. 55. Party in interest to sue. Action by grantee of land held adversely. 
Assignient of tiling in action. 

56. Action by and against a married woman. 

57. Action by executor, trustee, &c. 

58. Infant to appear by guardian. 

59. Appointment of guardian in particular action. 

60. Who to be plaintiff. 

61. Who to be defendant. 

62. Parties to be joined, &c. 

63. Parties to bills and notes, &c. 

6i. Existing suits ; action when not to abate. 

65. Court may determine controversy and interpleader. 



TITLE VI. 

OF THE PLACE OV TRIAL Of CIVIL ACTION'S. 

Sec. 66. Actions to be tried where subject matter situated. 

67. Actions to be tried where cause of action arose. 

68. Actions to be tried where defendant resides. 
60. Change of place of trial. 



TITLE VII. 

OF THE MANNER OF COMMENCING CIVIL ACTIONS, AND THE SERVICE 
OF THE SUMMONS. 

Sec. 70. Manner of commencing civil actions. 

71. Summons; by whom issued, &c. 

72. Power to sue as a pauper ; how obtained. 
7">. Form ot the summons. 

74. What summons to contain. 

75. Return of summons. 

76. Service of the complaint. 

77. Plaintiff failing to file complaint within ten days. 

78. Plaintiff failing to file complaint within the time for defendants 

appearance. 

79. Time of filing pleadings may be enlarged. 

80. Plaintiff shall naim an attorney. 



ANALYSIS. xxiii 

Sec. 81. Notice of no personal claim. 

82. Manner of service of summons. 

83. Service by publication ; form of sumaions. 

84. Manner and effect of publication. 

85. Defendant allowed to defend before and after judgment. 

86. Action for foreclosure of mortgage. 

87. JoinLand several Debtors — Parties. 

88. When service complete. 
80. Proof of service. 

90. Jurisdiction — Appearance — Appearance — Notice of Us pendens. 



TITLE VIII. 

OF THE PLEADINGS IX CIVIL ACTION. 
CHAPTER I. 

Of the Complaint. 

Sec. 91. Forms of pleading. 
52. Complaint. 
93. Complaint,, what to contain. 

CHAPTER II. 

The Demurrer. 

Sec. 91. Defendant to demur or answer. 
9-3. When defendant may demur. 

96. Demurrer shall specify grounds of objection. 

97. How to proceed if complaint be amended. 

98. Objection not appearing on complaint. 

99. Objection when deemed waived. 

CHAPTER III. 

The Answer. 

Sec 100. Answer what to contain. 

100. Counter claim ; Several defences. 

101. Demurrer and answer. 

102. Sham irrelevant defences. 

CHAPTER IV. 

The Reply. 

Sec 105. Reply ; demurrer to answer. 

106. Motion for judgment on answer. 

107. Demurrer to reply. 



xxiv ANALYSIS. 

CHAPTER V. 

Duties and powers of the Clerk of the'^Superior Court in relation 
to the pleadings, and in collateral matters. 

Sec. 108. Jurisdiction of clerk on pleading, &■&. 

109. Either party may appeal 

110. Duty of the clerk on appeal prayed. 

111. Issues of law, sent to Judge. 

112. Party to be heard before Judge. 

1 13. Duly of Judge on appeal. 

114. Judge to keep a Docket. 

115. Judgment on matter of fact final : on' matter of law may be 

appealed from. 

CHAPTER VI. 
General rules of pleading. 

Sec. 116. Pleadings to be subscribed and verified. 

117. Pleadings, how verified. 

118. Items of amount ; particulars. 

119. Pleadings, how construed. 

120. Irrelevant or redundant ; indefinite or uncertain. 

121. Judgments, 'how to be pleaded. 

122. Conditions precedent, how to be pleaded ; instrument for pay- 

ment of money only. 

123. Private statutes, how to be pleaded. 

124. Libel and Blander, how stated in complaint. 

125. Answer in such*cases. 

126. What causes of action may be joined in the same complaint. 

127. Allegation not denied, when to be deemed true. 

CHAPTER VII. 
Mistakes in pleading and amendments. 

Sec. 128. Material variance. 

129. Immaterial variance. . 

130. A failure of proof, when. 

131. Amendment of course after allowance of demurrer. 

132. Amendments by order, 

133. Relief, in case of a mistake. 

134. When plaintiff ignorant of the name of defendant 

135. Errors or defects not substantial to be disregarded. 

136. Supplemental pleadings. 



ANALYSIS. xxv 

CHAPTER VIII. 

Of the qualification and general duties of Clerks of the Superior 
Courts, 

Sec. 137. Bond of Clerk. 

138. Bond, how approved. 

139. Qualification of Clerks. 

140. Failure to give bond, &c. 

141. Office, where to be kept ; when to be open. 

142. To receive official papers, &c, 

143. To keep records. 

144. Books to be kept by Clerks. 

145. Books to be furnished by Secretary of State. 

146. Papers in each action to be kept separate and filed together. 

147. Solicitor to examine records. 



TITLE IX. 

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. 

Chapter I. — Aeeest and Bail. 

" II. — Claim and Delivery of Personal Property.' 

" III. — Injunction. 

" IV. — Attachment. 

" V. — Provisional Remedies. 

CHAPTER I. 

Arrest and Bail. 

SbC. 148. No person to be arrested, except as prescribed. 

149. In what cases. 

150. Order for arrest, by who to be made. 

151. .Affidavit to obtain order for arrest. To what! actions this chap- 

ter applies. 

152. Security by plaintiff before order for arrest. 

153. Order, when made, and its form. 

154. Affidavit and order to be delivered to sheriff, and copy to de- 

fendant. 

155. Arrest, how made. 

15C. Defendant to be discharged on bail or deposit. 

157. Bail, how given. 

158. Surrender of defendant. 
359. Surrender of defendant. 
160. Bail, how proceeded against 



xxiv ANALYSIS. 

CHAPTER V. 

Duties and powers of the Clerk of the'^ Superior Court in relation 
to the pleadings, and in collateral matters. 

Sec. 108. Jurisdiction of clerk on pleading, &o. 

1 09. Either party may appeal. 

110. Duty of the clerk on appeal prayed. 

111. Issues of law, sent to Judge. 

112. Party to be heard before Judge. 

1 13. Duty of Judge on appeal. 

114. Judge to keep a Docket. 

115. Judgment on matter of fact final : on* matter of law may be 

appealed from. 

CHAPTER VI. 
General rules of pleading. 

Sec. 116. Pleadings to be subscribed and verified. 

117. Pleadings, how verified. 

118. Items of amount ; particulars. 

119. Pleadings, how construed. 

120. Irrelevant or redundant ; indefinite or uncertain. 

121. Judgments, 'how to be pleaded. 

122. Conditions precedent, how to be pleaded ; instrument for pay- 

ment of money only. 

123. Private statutes, how to be pleaded. 

124. Libel and slander, how stated in complaint. 

125. Answer in such'cases. 

126. What causes of action may be joined in the same complaint. 

127. Allegation not denied, when to be deemed true. 

CHAPTER VII. 
Mistakes in pleading and amendments. 

Sec. 128. Material variance. 

129. Immaterial variance. . 

130. A failure of proof, when. 

131. Amendment of course after allowance of demurrer. 

132. Amendments by order, 

133. Relief, in case of a mistake* 

134. When plaintiff ignorant of the name of defendant 

135. Errors or defects not substantial to be disregarded. 

136. Supplemental pleadings. 



ANALYSIS. xxv 

CHAPTER VIII. 

Of the qualification and general duties of Clerks of the Superior 
Courts, 

Sec. 137. Bond of Clerk. 

138. Bond, how approved. 

139. Qualification of Clerks. 

140. Failure to give bond, &c. 

141. Office, where to be kept ; when to be open. 

142. To receive official papers, &c. 

143. To keep records. 

144. Books to be kept by Clerks. 

145. Books to be furnished by Secretary of State. 

146. Papers in each action to be kept separate and filed together. 

147. Solicitor to examine records. 



TITLE IX. 

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. 

Chapter I. — Areest and Bail. 

" II. — Claim and Delivery of Personal Property.* 

" III. — Injunction. 

" IV. — Attachment. 

" V. — Peoyisional Remedies. 

CHAPTER I. 

Arrest and Bail. 

SbC. 148. No person to be arrested, except as prescribed. 

149. In what cases. 

150. Order for arrest, by who to be made. 

151. .Affidavit to obtain order for arrest. To what actions this chap- 

ter applies. 

152. Security by plaintiff before order for arrest. 

153. Order, when made, and its form. 

154. Affidavit and order to be delivered to sheriff, and copy to de- 

fendant. 

155. Arrest, how made. 

15G. Defendant to be discharged on bail or deposit. 

157. Bail, how given. 

158. Surrender of defendant. 

159. Surrender of defendant. 
ICO. Bail, how proceeded against 



xxvi ANALYSIS. 

•Sbc. 161. Bail, how exonerated. 

162. Delivery of undertaking to plaintiff, and its acceptance or rejec- 

tion by him. 

163. Notice of justification. New hail. 

164. Qualification of hail. 

165. Justification of hail. 

166. Allowance of bail. 

167. Deposit with the Sheriff. 

168. Payment of deposit into court. 

169. Substituting bail for deposit. 

170. Deposit, how disposed of. 

171. Sheriff, when liable as bail. 

172. Proceedings on judgment against sheriff. 

173. Bail liable to sheriff. 

174. Vacating order of arrest or reducing bail. 
17-5. Affidavits on motion. 

CHAPTER II. 

Claim and Delivery- of Personal Property. 

Sec. 176. Delivery of personal property. 

177. Affidavit and its requisites. 

178. Requisition to sheriff to take and deliver the property. 
] 79. Security by plaintiff. 

180. Exception to sureties. 

181. Defendant, when entitled to re-delivery. 
1S2. Justification of defendant's sureties. 

183. Qualification and justification of sureties. 

18 4. Properly, how taken when concealed in building or inclosure. 

185. Property,' how kept. 

186. Claim of property by third person. 

187. Notice and affidavit, when and where to be filed. 

CHAPTER III. 
Injunction. 

Sec. 188. Injunction by order. 

189. Injunction, in what cases. 

190. At what time it may be granted. Copy affidavit to be served. 

191. Injunction after answer. 

192. Security upon injunction. Damages. 

193. Order to show cause. Restraint in meantime. 

194. Security upon injunction to suspend business of corporation. 

195. Motion to vacate or modify injunction. 
190. Affidavits on motion. 



ANALYSIS. xxvii 

CHAPTER IV. 
Attachment. 

Sec. 197. Property of foreign corporation*, and of non-resident or abscond- 
ing, or concealed defendants, may be attached. 
108. Publication to be made. 
199. Warrant, by whom granted. 
'-200. When warrant granted by Justice of the Peace. 

201. In what cases warrant may be issued. Affidavits may be filed. 

202. Security on obtaining warrant. 

203. Warrant, to whom directed and what to require. 

204. Mode of preceding in executing warrant. 

205. Proceedings in case of perishable property or vessels. 

206. Interest in corporations or associations liable to attachment. 

207. Attachment, how executed on property incapable of manual 

delivery. 

208. Certificate of defendants interest to be furnished. 

209. Judgment, how satisfied. 

210.' When action to recover notes, &c, of defendant, may be prose- 
cuted by plaintiff in tlfe action in which the attachment issued. 

211. Bond to sheriff on attachment, how disposed of on judgment for 

defendant, 

212. Discharge of attachment, and return of property or its proceeds, 

to defendant oh his appearance in action. 

213. Undertaking on the part of the defendant. Discharge of attach- 

ment. 

214. When the sheriff to return warrant and proceedings thereon. 

CHAPTER V. 

Provisional Remedies. 

Sec. 215. Powers of court as to receiver's, deposit of money, &c, in court, 
and other provisional remedies. Judgment for sum admit- 
ted due. 



TITLE X. 

OX THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. 

Chapter I. — Judgment upon failure to answer. &c. 
" II. — Issues and the mode of trial. 
"' III. — Trial by Jury. 
" IV. — Trial by the Court. 
" V. — Trial by Referees. 
' : VI. — The manner of entering judgment. 



xxviii ANALYSIS. 

CHAPTER I. 
Judgment upon failure to answer, &c. 

Sec. 216. Judgment defined. 

217. Judgment on failure of defendant to answer, or for excess ove*- 

counter-claim. 

218. Judgment on prirolous demurrer, answer or reply. 

CHAPTER II. 
Issues and Mode of Trial. 

Sbc. 219. The different kinds of issues. 

220. Issue of law. 

221. Issue of fact. 

222. On issues of both law and fact, the issue of law to be first tried,. 

223. Trial defined. 

224. Issues, how tried. 

225. Other issues to be tried by the Court or Judge. 

226. Issues of fact'when to be tried. 

227. Trial may be postponed by Clerk, when. 

228. Trial postponed by Judge in term, when. 

229. Criminal calendar first disposed of. Order of disposing of issue?. 

in civil actions. 

CHAPTER III. 
Trial by Jury. 

Sec. 230. Separate trials. 

231. Judge to be furnished with copy of pleadings. 

232. General and special verdicts defined. 

233. When jury may render either general or special verdict, and 

when, Judge may direct special finding. 

234. On special finding with general verdict, the former to control. 

235. Jury to assess defendant, damages in certain cases. 

236. Entry of the verdict. Motion for new trial on Judge's minute*. 

237. Judge to explain law, but to express no opinion on facts. 

238. Judge to put his instructions in writing. 

239. Couusel to put their prayer for instructions in writing. 

CHAPTER IV. 
Trial by the Court. 

Sec 240. Trial by jury, how waived. 

241. On trial by the Court, judgment how to be given. 

242. Exceptions, how and when taken. 

243. Proceedings upon judgment on issm of law. 



ANALYSIS. xxix 

CHAPTER V. 
Trial by Referees. 

Sec. 244. All issues referable by consent. 

245. When reference may be compulsively ordered. 

246. Mode of trial ; Effect of report ; Review. 

247. Referees, bow chosen. Who may be Referee.- Report. 

CHAPTER VI. 

Manner of Entering Judgment. 

-Sec. 248. Judgment may be for, or against, any of the parties ; may grant 
dependent affirmative relief. Complaint may be dismissed for 
neglect to prosecute action. Judgment against married wo- 
man. 
249 • The relief to be awarded to the plaintiff. 

250, Rate of damages, where damages are recoverable. 

251. Judgment in action for recovery of personal property. 

'252. Clerk to enter judgments on Judgment Book, also judgments 
rendered in other Courts, and index them. 

253. Judgment roll. 

254. Existing suits, Judgments when and how to be docketed. Se- 

cured on appeal. 



TITLE XL 

OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. 

CHAPTER I. 

The Execution. 

Sbc. 255. Execution within three years of course. 

256 After^three years, to be issued only by leave of Court. Leave 

how obtained. 
257. Judgments, how enforced. 
UoS.^The different kinds of execution. 

259. To what counties execution may be issued. Execution against 

a married woman. 

260. Execution against the person, in what cases. 

261. Form of the execution. 

262. To be returnable in sixty days. 

263. Existing laws re'ating to executions continued until otherwise 

provided, 



xxx ANALYSIS. 

CHAPTER II. 
Proceedings Supplementary to the Execution. 

Sec. 264. Existing suits. Order for discovery of property. Examination 
of judgment, debtor, &c. 

265. Existing suits. Any debtor may pay execution against his 

creditor. 

266. Existing suits. Examination of debtors of judgment debtor, or 

of those having property belonging to him. Joint debtors. 

267. Existing suits. Witness required to testify. 

268. Existing suits. Compelling party or witnesses to attend. 

269. Existing suits. What property may be ordered to be applied to 

the execution. 

270. Existing suits. Judge may appoint receiver, and forbid transfer, 

&o, of property — order, &c. 

271. Existing suits. Proceedings upon claim of another party to 

property, or on denial of indebtedness to judgment debtor. 

272. Existing suits. -Reference by Judge. 

273. Existing suits. Costs of proceeding. 

214. Existing suits. Disobedience of order how punished. 



TITLE XII. 

OF THE COSTS IN CIVIL ACTIONS. 

Sec. 275. Fee bill of Attorney abolished. 

276. When allowed of course to the plaintiff. Several actions on one 

instrument. 

277. When allowed to defendant. 

278. When allowed to either party in the discretion of the court. 

279. Amount of costs allowed. 

280. Additional allowance. 

281. Allowance, iiow computed. Difficult and extraordinary cases. 

282. Report, when allowed. 

283. Costs, how to be inserted in judgment. Adjustment of inter- 

locutory costs. 

284. Fees of clerks, sheriffs, &e. 

285. Referees fees, 

286. Costs against infant plaintiff. 

287. Costs in action by or against an execution or administrator, trus- 

tees of an express trust, or a person expressly authorized by 
statute to sue. 

288. Costs in civil actions by the State. 

289. Costs in actions by the State, for a private person. 

290. Costs against assignee after action brought, of cause of action. 



ANALYSIS. xxxi 



Sec. 291. Costs on a settlement. 
192. Costs on appeals. 

293. Costs in existing actions. 

294. Costs in special proceedings. 

295. Costs on appeals from Justices of the Peace. 



TITLE XIII. 

OF APPEALS IN CIVIL ACTIONS. 

Sec. 296. Existing suits ; writs of error abolished, and appeals substituted. 

297. Orders made out of court, how vacated or modified. 

298. Existing suits; who may appeal. 

299. Appeal; in what cases it may be taken. 

300. When taken ; execution not suspended when. 

301. Appeal to be entered by clerk on Judgment Docket, case how 

stated and settled. 

302. Clerk to make copy of judgment roll, and to seed to Clerk of 

Supreme Court. 

303. On appeal, security must be given, or deposit made, unless waived . 

304. Existing suits — on judgment for money — security to stay execu- 

ecution — new undertaking on sureties in first — becoming in- 
solvent. 

305. Existing suits — if judgment be to deliver document or personal 

property, it must deposited or security given. 
•306. Existing suits — if to execute conveyance, it must be executed 
and deposited. 

307. Existing suits — security where judgment is to deliver real prop- 

erty, or for a sale of mortgaged premises. 

308. Existing suits — stay of proceedings upon security being given. 

309. Existing suits — Undertakings may be in one instruments or 

several. 

310. Existing suits — security to be approved and to justify. 

311. Existing suits — perishable property may be sold notwithstanding 

appeal. 

312. Existing suits, — undertaking must be filed. 

313. Existing suits — intermediate orders effecting the judgment may 

be renewed on the appeal. • 

314. Existing suits — judgment on appeal — restitution. 



xxxii . ANALYSIS. 

TITLE XIV. 

OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS AND GENERAL 

PROVISIONS. 

CHAPTER I. 
Submitting a Controversy without Action. 

Sec. 315. Controversy how submitted without action. 

316. Judgment. 

317. Judgment how enforced or appealed from. 

CHAPTER II. 

Proceedings against Joint Debtors, Heirs, Devisees, legatees, and 
Tenants holding under a Judgment Debtor, 

Sec. 318. Parties, not summoned in action on joint contract, may be sum- 
moned after judgment. 

319. If judgment debtor die, his representatives may be summoned. 

320. Form of summons. 

321. To be accompanied by affidavit of amount due. 

322. Party summoned may answer and defend. 

323. Subsequent pleadings and proceedings same as in action. 

324. Answer and reply to be verified. 

CHAPTER III. 
Confession of Judgment without Action. 

Sec. 323. Judgment may be confessed for debt due or contingent liability. 

326. Statement in writing and form thereof. 

327. Judgment and execution. 

CHAPTER IV. 

Offer of the dependant to compromise the whole or a part of the 

Action. 

Sec. 328. Offer of compromise. 

329. Dependant may offer to liquidate damages conditionally. 

330. Effect of acceptance or refusal of offer. 

CHAPTER V. 

Admission or Inspection of Writing. 

Sec.J,331. Existing suits, Inspection and copy, of book", papers and docu- 
ments, how obtained. 



334. 
335. 
336. 
337. 
338. 



ANALYSIS. xxxiii 

CHAPTER VI. 

Examination of Parties. 

Sec. 332. Action for discovery abolished. 

333. Existing suits ; a party may examine his adversary as a witness. 
Such examination also allowed before ferial. 
Party how compelled to attend. 
Testimony of party may be rebutted. 
Effect of refusal to testify. 

Testimony of a party not responsive to the inquir- 
ies, may be rebutted by the oath of the party calling him. 

339. Existing suits ; Persons for whom action is brought or defended 

may be examined. 

340. Existing suits ; Examination of co-plaintiff or co-defendant. 

341. Husband and wife, witnesses. 

CHAPTER VII. 

Examination of Witnesses. 

Sec. 342. Existing suits ; Interest not to exclude a witness. 

343. Existing suits ; parties to actions and special proceedings may be 
examined as witnesses on their own behalf, except in certain 
cases. 

CHAPTER VIII. 
Motions and Orders. 

Sec. 344. Definition of an order. 

345. Definition of a motion. Motions how and where made, Stay of 

proceedings, compelling parties to testify, Decision on motion. 

346. Notice of motion. 

CAHPTER IX. 
Entitling Affidavits. 

Sec. 347. Existing suits ; affidavits defectively entitled, valid. 

CHAPTER X. 

Computation of Time. 

Sec 348. Time, how computed. 

CHAPTER XI. 
Notes and Filing and Service of Papers. 

Sec 340. Existing suits. Notice, &c, how served; subpoena for witnesses 

350. Existing suits ; service by mail. 

351. Existing suits ; service by mail. 

352. Existing suits ; double time when served by mail. 

353. When this chapter does not apply. 

C 



xxxiv ANALYSIS. 

CHAPTER XII. 

Duty of Sheriffs and Coroners. 

Sec. 354. Duty of sheriff and coroner in serving or executing process,[and 
how enforced ; may return process by mail. 

CHAPTER XIII. 

Accountability of Guardians. 

Sec. 355. Guardian not to receive property until security given. 
CHAPTER XIV. 
Powers of Referees. 
Sec. 356. Powers of referees. 

CHAPTER XV. 
Miscellaneous Provisions. 

Sec. 357. Papers lost or withheld, how supplied. 

358. Where undertaking to be filed. 

359. Time for publication of notices, how computed, how improved. 

360. Laws of other States and governments. 



TITLE XV. • 

ACTIONS IN PARTICULAR CASES. 

CHAPTER I. 

Actions against Foreign Corporation. 

Sec. 361. Where and by whom brought. 

CHAPTER II. 

Actions in place of scire facias, quo warranto, and of informations in 
the nature of quo warranto. 

Sec. 362. Scire facias and quo warranto abolished and this chapter sub- 
stituted. 

363. Action may be brought by Attorney-General to vacate a charter, 

by direction of the Legislature. 

364. Action to annul a corporation, when and how brought by Attor- 

ney-General, by leave of the Supreme Court. 



ANALYSIS. xxxv 

Sec. 365. Leave how obtained. 

366. Action upon information or complaint of course. 

367. Action, when and how brought to vacate letters patent. 

368. Relator, when to be joined as plantiff. 

369. Complaint, and arrest of defendant, in action for^usurping an 

office. 

370. Judgment in such actions. 

371. Assumption of office, &c, by relator, when judgment isjn his 

favor. 

372. Proceedings against defendant, on refusal to deliver books'or 

papers. 

373. Damages, how recovered. 

374. One action against several persons claiming office or franchise. 

375. Penalty for usurping office or franchise ; how awarded. 

376. Judgment of forfeiture against a corporation. 

377. Costs against a corporation, or persons claiming to.be such, - how 

collected. 

378. Restraining corporation, and appointment of receiver. 

379. Copy of judgment-roll against corporation, where to be filed. 

380. Entry of judgment relating to letters patent. ' 

381. Actions for forfeiture of property to the State. 

CHAPTER III. 
Action for the Partition of Real Property,*&c. 

Sec 382. Provisions of the Revised Code applicable to actions for partition. 
CHAPTER IV. 
Actions for Waste and Nuisance. 

Sec 383. Action of waste abolished. Waste how remediable. 

384. Provisions of Revised Code applicable to action for waste under 

this act. 

385. When judgment of forfeiture and eviction to be given. 

386. Writ of nuisance abolished. 

387. Remedy for injuries heretofore remediable by writ of nuisance. 



TITLE XVI. 

General Provisions. 

Sec. S88. Definition of " real property." 

389. Definition of "personal property." 

390. Definition of "property." 

391. Rule of construction. 



xxxvi ANALYSIS. 

Sec. 392. Statutory provisions inconsistent with this act repealed. 
393. Rules and practice inconsistent with this act abrogated. 

894. Judges of Supreme Court shall make rules of practice. 

895. Judges of Superior Courts to suggest rules. 

396. If Judge'of a Superior Court not present, Court to be adjourn- 
ed, when. 

397.J|If trial for felony in progress at expiration of a term, term to be 
prolonged. 

398. Pleadings, &c, how written. 

399. Judges of Superior Courts to issue writs of habeas corpus. 



TITLE XVII. 

Regulations Respecting Existing Suits. 

Sec."400. Clerk of Superior Court to transfer existing suits in which no 
final judgment. 

401. Suits not transferred to abate. 

402. If transferred how proceeded with. 

403. Existing judgments not dormant, may be transferred. 

404. Dormant judgments, how revived. 

405. Actions to recover debts, embraced in stay law. 

406. Executions levied on personal property. 

407. Executions satisfied. 

408. Executions not levied at all, or levied on real property. 

409. Executions to be dccketed. 

410. Penalty on Sheriff for failing to return. 

411. Judgments not dormant, when. 
412.^0rdinance of 11th March, 1868, not effected. 



TITLE XVIII. 

OF THE SUPREME COURT. 

Sec 413. Jurisdiction of Supreme Court. 

414. Cases, how taken to Supreme Court. 

415. Claims against the State. 

416. Manner of prosecutirg claims against the State. 



ANADYSIS. sxxvii 

TITLE XIX. 

PROBATE COtmTS. 

CHAPTER I. 

Jurisdiction and Powers. 

Sec. 417. Judges of probate. 

418. Jurisdiction. 

419. Disqualification to act. 

420. "Waiver of disqualification. 

421. Removal of proceedings. 

422. Enumeration of powers. 

423. Haw party may appear. 

424. Judge of Probate not to act as Attorney. 

425. Seals. 

426. Files. 

427. Records. 

428. Books to be furnished by Secretary of State, and to.be indexed. 

CHAPTER II. 
Probate of Deeds. 

Sec. 429. How made, &c. 

430. When land lies in two or more counties. 

431. Official bonds. 

432. When Judge of probate disqualified to act. 

CHAPTER III. 
Jurisdiction over the Estates of Deceased Persons. 

434. WhenProbate Judge has jurisdiction of the estate. 

435. Probate Jud^e first acquiring jurisdiction, to have exclusive 

jurisdiction. 

CHAPTER IV. 
Probate of Wills. 

Sec. 435. How wills admitted to probate. 

436. Executor not incompetent as a witness. 

437. Proof and examinations in writing. 

438. Probate, how far conclusive. 
4£9. Who may apply for probate. 

440. Who may apply when executor does not. 

441. What to be shown on application. 

442. Production of will compelled by process. 



xxxviii ANALYSIS. 

Sec. 443. Will made without the State ; how proved. 

444. Will of citizen or subject of anoflier country ; how allowed and 

recorded in this State. 

445. Will of citizen of this State proved elsewhere ; how proved and 

recorded here. 

446. Caveat. 

447. Trafiferred to Superior Ccurt ; when. 

448. Order to suspend proceedings. 

CHAPTER V. 

Letters Testamentary. 

Sec. 449. Who is disqualified to serve as executor. 
450. Executor may renounce. 
451.* When excutor deemed to have renounced. 
452. Executor under disqualification of age or absence. 

CHAPTER VI. 

Letters of Administration with the Will Annexed. 

SEC r 453. To be granted; when and to whom. 

454. Qualifications, &c. 

455. Will of testator to be observed. 

CHAPTER VII. 
Letters of Administration. 

Sec. 456. To whom whom granted. 

457. Disqualification. 

458. ^Joining persons not entitled. 

459. Renunciation of persons having prior right. 

460. Persons having prior right disqualified or absent. 

461. What must be shown on application. 

462. Contested administration. 

CHAPTER VIII. 

Letters of Collectic n. 

Sec. 463. When to issue and to whom. 
464. i Qualification, &c. 

465. Authority, &c. 

466. Authority, when to cease. &c. 



ANALYSIS. xxxix 

CHAPTER IX. 
General Provisions Respecting Executors. 

Sec. 467. Oath, &c. 

468. Bond, &c. 

469. Revocation of letters on proof of will, &c. 

470. Revocation on ground of disqualification or default. 

471. Letters, how issued and tested. 

CHAPTER X. 
Guardian and Ward. 

Sec.*472. Power over oiphan's estates, and to appoint guardians. 

473. Inquisition of Lunacy. 

474. Proceedings on application for guardianship. 

475. Letters of appointment. 

476. Reference to sections 456, 467, 469. 

CHAPTER XI. 

Accounting by Executors, Administrators, Collectors and Guardians, 
and Auditing by Judge of Probate. 

Sec. 477. Make return on oath ; when. 

478. Annual accounts. 

479. Failure to account. 

480. Vouchers. 

481. Final accounts. 

CHAPTER XII. 
Masters and Apprentices. 

Sec. 482. Binding to be by indenture. 

483. Remedy thereon. 

484. Who may be apprenticed. 

485. For what time bound. 

486. Duties of master. 

487. Duty of Probate Judge. 

488. Apprentices, how compelled to serve. 
4S9. Misconduct of masters. 

CHAPTER XIII. 

Transfer and Appeal. 

Sec. 490. Issues of fact and matters of law. 

491. No bond required. 

492. Appeals when taken and by whom. 



xl ANAEYSIS. 

CHAPTER XIV. 
What Laws Repealed and Unrepealed. 

Sec. 493. What laws repealed and unrepealed. 



TITLE XX. 

THE COURTS OF JUSTICES OF THE PEACE. 

CHAPTER I. 

Maimer of Commencing Civil Actions in Justice's Courts. 

Sec. 494. Laws repealed. 

495. Summons. 

496. Summons, by whom issued. 

497. Service and return of summons. 

CHAPTER II. 

Jurisdiction and Manner of Proceeding'. 

Sec. 498. Jurisdiction. 

499. Where sum demanded exceeds two hundred dollars. 
«*>00. Answer to title. 

501. Action to be dismissed, when. 

502. Another action may be brought. 

503. Docketing Justice's judgment. 

504. Rules of proceeding in Justice's Court. 

505. Execution ; on what, and from what time a lien. 

506. Stay of execution ; security. 

507. Former judgment. 

508. Application for rehearing. 

509. Justice's judgment removed to another county ; how. 
501. Witnesses, penalties, &c. 

CHAPTER III. 

Arrest and Bail. 

Sec 511. Provisions of Code of Civil Procedure Applicable. 

512. Arrest, in what cases. 

513. Order for arrest, by whom made. 

514. Affidavit to obtain order. 

515. To what actions this chapter applies. 



ANALYSIS. xli 

CHAPTER IV. 

Attachment. 

Sec. 516. Provisions of Code of Civil Procedure Applicable. 

CHAPTER V. 

Jury Trials in courts of Justice's of the Peace. 

Sec. 517. Jury list furnished to each Justice. 

518. Justice to keep jury bos. 

519. Names of jurors to be deposited in jury box. 

520. When trial by jury demanded or waived. 

521. Jury drawn and trial postponed. 

522. Summoning of the jury, 

523. The jury for the trial of the cause. 

524. Challenge. 

525. What names to be be returned to jury box or destroyed. 

526. Tales jurors may be summoned. 

527. Jury sworn and empannelled — verdict, &c. 

528. New trial — appeal. 

520. Less than six, may be a jury, when. 

530. Not compelleed to serve out of township. 

531. Jurors seiving on a trial, &c. 

532. Deposit of jury fees. 

533. Adjournment upon return of the jury. 

CHAPTER VI. 

Appeal. 

Sec, 534. Appeal, execution. 

545. Appeal, when to be taken. 

536. Notice of appeal, on whom served. 

537. Return to the appeal. 

538. Defective return. 

539. On return to the appeal wbat to be done. 

540. Appeal on what heard. 

541. Execution of the judgment, how stayed; 

542. Same, undertaking to be given. 

543. Same, delivery and service of the order, on whom. 

544. Restitution. 

545. Costs how awarded. 



xlii ANALYSIS. 

CHAPTER VII. 
^General Provisions respecting Justices of the Peace. 

Sec. 546. Within what time to qualify. 

547. Removal out of township six months to forfeit office. 

548. Resignation. 

549. May issue process and try causes, where. 

550. Office under the United States. 

551. Punishment on conviction of infamous crime, &c. 

552. Fifing docket with clerks. 

553. Delivery of unfilled docket to successor. 

554. Filing and delivery, how enforced. 



TITLE XXI. 

FEES. 

Chapter I. — General Provisions. 

" II. — Fees of Solicitors. * 

III. — Fees of Clerks of the Superior Courts. 

1. In Civil Actions. 

2. In Criminal Actions. 
IV. — Fees of Registers of Deeds. 
V. — Fees of Sheriffs. 
VI. — Fees of Coroners. 
VII. — Fees of Justices of the Peace. 
VIII. — Fees of Constables. 
IX. — Fees of Jurors. 
X. — Fees and Salaries of Clerks of the Supreme Court. 

CHAPTER I. 

General Provisions. 

Sec. 555. Fees of officers, by whom, and how, payable. 

556. Copy sheet defined. 

557. Fees on returns to Secretary of State. 

558. Officers to make returns of fees. 

559. Clerks to furnish blank writs. 

560. Who to pay costs in criminal actions. 

561. Half fees, if convict insolvent. 

562. How fees of officers received. 



ANALYSIS. xliii 

CHAPTER II. 
Fees of Solicitors. 



Sec. 563. When to receive fees salary. 

564. Solicitors' fees*— for what. 

CHAPTER III. 

The fees of Clerks of the Superior Courts. 

Sec. 565. What fees and for what. 

I. In Civil Cases. 

II. In Criminal Actions. 

CHAPTER IV. 

Fees of Registers of Deeds. 

Sec. 566. Specification. 

CHAPTER V. 

Fees of Sheriffs. 

Sec. 567. Specifica'iou. 

CHAPTER VI. 

Fees of Coroners. 

Sec. 568. Specification. 

CHAPTER II. 

Fees of Justices of the Peace. 

Sec. 569. Specifications. 

CHAPTER VIII. 

Fees of Constables. 

Sec. 570. Like those of the sheriff. 

CHAPTER IX. 

Fees of Jurors. 

Sec. 571. Day and mileage. 

CHAPTER X. 

Fees ami Salaries of the Supreme Court. 

Sec. 572. To remain as heretofore. 



xliv ANALYSIS. 

TITLE XXII. 

Of the printing of the Code of Civil Procedure. 

Sec. 573. Code as printed under the supervision of the Commissioners-;. 
evidence of the law. 
574. Copies, how distributed. 



TITLE XXIII. 
Ratification of Statntes composing this Code* 

Sec. 575. Date ot Ratification. 



Code of Civil Procedure. 



THE 



Code of Civil Procedure 

OF 

NORTH CAROLINA. 



Whereas, it is ordained by Section 1, Article IV of the 
Constitution of North Carolina, that : 

" The distinction between actions at law and suits in equity 
and the forms of all such actions and suits shall be abolished, 
and there shall be in this State but one form of action for the 
enforcement or protection of private rights or the redress of 
private wrongs, which shall be denominated a civil action ; 
and every action prosecuted by the people of the State as a 
party against a person charged with a public offence shall be 
termed a criminal action. Feigned issues shaH also be abol- 
ished, and the fact at issue tried by order of court before a 
jury." 

The General Assembly of the State of North Carolina, for 
the purpose of carrying into effect the said section, and regu- 
lating the practice and procedure in civil actions, in the seve- 
ral courts of this State, do enact as follows : 

GENERAL DEFINITIONS AND DIVISIONS. 
,1. — Remedies. 

Remedies in the courts of justice are divided into — 

1. Actions. 

2. Special proceedings. 



2 THE CODE OF 

§?.— Actions. 

An action is an ordinary proceeding in a court of justice, 
by which a party prosecutes another party, for the enforcement 
or protection of a right, the redress or prevention of a wrong, 
or the punishment of a public offence. 

§3. — Special Proceedings. 

Every other remedy is a special proceeding. 

§4. — Division of Actions. 

Actions are of two kinds : 

1. Civil. 

2. Criminal. 

§5.— Criminal Action. 
A criminal action is, 

1. An action prosecuted by the State as a party against a 
person charged with a public oflFence, for the punishment 
thereof. 

2. An action prosecuted by the State, at the instance of an 
individual, to prevent an apprehended crime against his person 
or property. 

§6.— Civil Action. 

Every other is a civil action. 

§7. — Remedies not Merged. 

Where the violation of a right admits both of a civil and 
criminal remedy, the right to prosecute the one, is not merged 
in the other. 



TITLE I. 

GENERAL PROVISIONS IN REGARD TO ACTIONS. 
§8. — To what actions these enactments are applicable. 

The following enactments are applicable to : 

1. Civil actions, which at the approval, by the government 
•of the United States, of the Constitution adopted by a Conven- 



CIVIL PROCEDURE. 3 

tion of this State, on the sixteenth day of March, 1868, were 
pending in any County Court, Superior Court of law, or 
Court of Equity, of this State, and which were not founded on 
contract, as far as they may be, according to the stage of pro- 
gress of the action, and having regard to its subject and not 
to its form. 

2. All civil actions which shall be commenced after the rat- 
ification of this Act, not founded on a contract made prior to 
its ratification. 

3. All civil actions commenced prior to the ratification of this 
Act, or which shall be commenced hereafter, for causes of action 
included within the provisions of an ordinance, entitled "An 
Ordinance respecting the jurisdiction of the courts of this State,'' 
ratified on the fourteenth day of March 1868, shall be governed 
in respect to the practice and procedure therein, by the provisions 
of that ordinance, and by the existing laws, as far as they may 
be, except as to form. — [See Appendix.] 

4. All actions commenced prior to the ratification of this 
Act, or which shall be hereafter commenced, founded on a con- 
tract made prior to the ratification of this Act, and not em- 
braced in the ordinance above-mentioned shall be governed in 
respect to the practice and procedure therein, up to, and in- 
cluding the judgment, by the laws existing prior to the ratifi- 
cation of this Act, as near as may be, and the practice in such 
actions subsequent to judgment, shall be governed by the en- 
actments of this Act. 

<?9. — Definition of Court— To mean Clerk, when. 

In those of the following enactments, which confer juris- 
diction or power, or impose duties, when the words Superior 
Court, or " Court," in reference to a Superior Court are used, 
they mean the Clerk of the Superior Court, unless otherwise 
specially stated, or unless reference is made to a regular term 
of the Court, in which cases the Judge of the Court alone, is 
meant. 



4 THE CODE OF 

TITLE II. 

SUPERIOR COURTS. 

§10.— Original Civil Jurisdiction of the Superior Courts. 

The Superior Courts shall have exclusive original jurisdic- 
tion of all civil actions, whereof exclusive original jurisdiction 
is not given to some other Court. (Const. Art. IV, Sect. 15.) 

§11.— Terms of the several Superior Courts. 

The terms of the several Superior Courts, of this State, shall 
begin in each year, at the times herein stated, and shall con- 
tinue to be held for two weeks (Sundays and legal holidays 
excepted) unless the business be sooner disposed of. 

FIRST JUDICIAL DISTRICT. 

Bertie County, on the first Monday in March and October- 
Hertford County, on the third Monday in March and October. 
Gates County, on the fourth Monday after the first Monday 
in March and October. 

Chowan County, on the sixth Monday after the first Monday 
in March and October. 

Perquimans County, on the eighth Monday after the first 
Monday in March and October. 

Pasquotank County, on the tenth Monday after the first 
Monday in March and October. 

Camden County, on the twelfth Monday after the first Mon- 
day in March and October. 

Currituck County, on the fourteenth Monday after the first 
Monday in March and October. 

SECOND JUDICIAL DISTRICT. 

Tyrell County, on the first Monday in September and Feb- 
ruary. 

Washington County, on the third Monday in September and 
February. 

Beaufort County, on the sixth Monday after the third 
Monday in September and February. 



CIVIL PROCEDURE. 5 

Pitt County, on the eighth Monday after the third Monday 
in September and February. 

Edgecombe County, on the tenth Monday after the third 
Mpnday in September and February. 

THIRD JUDICIAL DISTRICT. 

Wayne County, on the first Monday in September and 
February. 

Jones County, on the third Monday in September and 
February. 

Onslow County, on the first Monday after the fourth Mon- 
day in September and February. 

Craven County, on the third Monday after the fourth Mon- 
day in September and February. 

Lenoir County, on the fifth Monday after the fourth Mon- 
day in September and February. 

Greene County, on the seventh Monday after the fourth 
Monday in September and February. 

Carteret County, on the ninth Monday after the fourth 
Monday in September and February. 

Wilson County, on the eleventh Monday after the fourth 
Monday in September and February. 

FOURTH JUDICIAL DISTRICT. 

Robeson County, on the fourth Monday in August and 
February. 

Bladen County, on the second Monday after the fourth 
Monday in August and February. 

Columbus County, on the fourth Monday after the fourth 
Monday in August and February. 

Brunswick County, on the sixth Monday after the fourth 
Monday in August and February. 

New Hanover County, on the eighth Monday after the 
fourth Monday in August and February. 

Sampson County, on the tenth Monday after the fourth 
Monday in August and February. 

Duplin County, on the twelfth Monday after the fourth 
Monday in August and February. 



6 THE CODE OF 

Martin County, on the second Monday after the third Moa 
day in September and February. 

Hyde County, on the fourth Monday after the third Mon- 
day in September and February. 

FIFTH JUDICIAL DISTRICT. 

Harnett County, on the second Monday in August and 
February. 

Moore County, on the second Monday after the second 
Monday in August and February. 

Montgomery County, on the fourth Monday after the second- 
Monday in August and February. 

Stanly County, on the sixth Monday after the second Mon- 
day in August and February. 

Union County, on the eighth Monday after the second 
Monday in August and February. 

Anson County, on the tenth Monday after the second Mon- 
day in August and February. 

Richmond County, on the twelfth Monday after the second 
Monday in August and February. 

Cumberland County, on the fourteenth Monday after the 
second Monday in August and February. 

SIXTH JUDICIAL DISTRICT. 

Granville County, on the ' second Monday in August and 
February. 

Warren County on the second Monday after the second 
Monday in August and February. 

Franklin County, on the fourth Monday after the second 
Monday in August and February. 

Johnston County, on the sixth Monday after the second 
Monday in August and February. 

Wake County, on the eighth Monday after the second Mon- 
day in August February. 

Nash County, on the tenth Monday after the second Monday 
in August and February. 

Halifax County, on the twelfth Monday after the second 
Monday in August and February. 



CIVIL PROCEDURE. 7 

Northampton County, on the fourteenth Monday after the 
second Monday in August and February. 

SEVENTH JUDICIAL DISTRICT. 

Guilford County, on the first Monday in March and Sep- 
tember. 

Rockingham County, on the second Monday after the first 
Monday in March and September. 

Caswell Comity, on the fourth Monday after the first Mon- 
day in March and September. 

Person County, on the sixth Monday after the first Monday 
in March and September. 

Orange County, on the eighth Monday after the first Monday 
in March and September. 

Chatham County, on the tenth Monday after the first Monday 
in March and September. 

Randolph County, on the twelfth Monday after the first 
Monday in March and September. 

Alamance County, on the fourteenth Monday after the first 
Monday in March and September. 

EIGHTH JUDICIAL DISTRICT- 

Davie County, on the first Monday in April and September. 

Rowan County, on the third Monday in April and Sep- 
tember. 

Davidson County, on the second Monday after the third 
Monday in April and September. 

Forsyth County, on the fourth Monday after the third 
Monday in April and September. 

Stokes County, on the sixth Monday after the third Monday 
in April and September. 

Surry County, on the eighth Monday after the third Monday 
in April and September. 

Yadkin County, on the tenth Monday after the third Monday 
in April and September. 

NINTH JUDICIAL DISTRICT. 

Polk County, on the first Monday in March and September. 



8 THE CODE OF 

Rutherford County, on the third Monday in March and 
September. 

Cleaveland County, on the second Monday after the third 
Monday in March and September. 

Lincoln County, on the fourth Monday after the third Mon- 
day in March and September. 

Gaston County, on the sixth Monday after the third Monday 
in March and September. 

Mecklenburg County, on the eighth Monday after the third 
Monday in March and September. 

Cabarrus County, on the tenth Monday after the third Mon- 
day in March and September. 

TENTH JUDICIAL DISTRICT. 

Catawba County, on the first Monday in March and Sep- 
tember. 

Alexander County, on the third Monday in March and Sep- 
tember. 

Iredell County, on the second Monday after the third Mon- 
day in March and September. 

Wilkes County, on the fourth Monday after the third Mon- 
day in March and September. 

Caldwell County, on the sixth Monday after the third Mon- 
day in March and September. 

Burke County, on the eighth Monday after the third Mon- 
day in March and September. 

McDowell County, on the tenth Monday after the third 
Monday in March and September. 

ELEVENTH JUDICIAL DISTRICT. 

Alleghany County, on the first Monday in April and Sep- 
tember. 

Ashe County, on the third Monday in April and September. 

Watauga County, on the second Monday after the third 
Monday in April and September. 

Mitchell County, on the fourth Monday after the third Mon- 
day in April and September. 



CIVIL PROCEDURE. 9 

Yancey County, on the sixth Monday after the third Mon- 
day in April and September. 

Madison County, on the eighth Monday after the third Mon- 
day in April and September. 

Buncombe County, on the tenth Monday after the third 
Monday in April and September. 

TWELFTH JUDICIAL DISTRICT. 

Clay County, on the first Monday in April and September. 

Cherokee County, on the third Monday in April and Sep- 
tember. 

Macon County, on the second Monday after the third Mon- 
day in April and September. 

Jackson County, on the fourth Monday after the third 
Monday in April and September. 

Haywood County, on the sixth Monday after the third 
Monday in April and September. 

Transylvania County, on the eighth Monday after the third 
Monday in April and September. 

Henderson County, on the tenth Monday after the third 
Monday in April and September. 



TITLE III. 

GENERAL PROVISIONS AS TO CIVIL ACTIONS. 

§12.— Forms of Civil Actions — Distinction between Actions at Law and Suits 
in Equity abolished. 

The distinction between actions at law and suits in equity, 
and the forms of all such actions and suits, heretofore exist- 
ing, are abolished ; and there shall be, in this State, here- 
after, but one form of action, for the enforcement or protec- 
tion of private rights and the redress of private wrongs, 
which shall be denominated a civil action. (Const. Art. IV. 
Sec. 1.) 



10 THE CODE OF 

i 13.— Parties designated— Plaintiff and Defendant. 

In such action, the party complaining shall be known as the 
plaintiff, and the adverse party as the defendant. 

§14. — Actions on Judgments — When they may be brought. 

No action shall be brought upon a judgment rendered in a 
any court of this State, which shall be rendered after the 
ratification of this act, except a court of a Justice of the 
Peace, between the same parties, without the leave of the 
Judge of the court, either in or out of term, for good cause 
shown, on notice to the adverse party. 

§15. — Feigned issues abolished. 

Feigned issues are abolished ; and instead thereof, in the 
cases where the power now exists to order a feigned issue, 
or when a question of fact not put in issue by the pleadings, 
is to be tried by a jury, an order for the trial may be made, 
by the Judge, stating distinctly and plainly the question of 
fact to be tried ; and such order shall be the only authority 
necessary for a trial. 



TITLE IY. 



LIMITATION OF ACTIONS. 

Chapter I. Actions in General. 

" II. Actions for the recovery of Real Property. 

" III. Actions for the recovery of Property other than Real. 

" IV. General provisions as to the Commencement of Action. 



CHAPTER I. 

ACTIONS IN GENERAL. 
§16. — Time of commencing Actions in General. 

The provisions contained in chapter sixty-five of the Re- 
vised Code, entitled " Limitations," are repealed, and the pro- 
visions of this title are substituted. This title shall not 
extend to actions already commenced, or to cases where the 



CIVIL PROCEDURE. 11 

right of action has already accrued, but the statutes in force 
previous to the ratification of this act shall be applicable to 
such cases ; and in cases where the right of action has already 
accrued, but the action has not been commenced, the said 
statutes shall be applied according to the subject-matter of the 
action, and without regard to the form. 

§17. — Period of Limitation — Objection mnst be taken by answer. 

Civil actions can only be commenced within the periods pre- 
scribed in this title, after the cause of action shall have accrued, 
except where, in special cases, a different limitation is pre- 
scribed by statute. But the objection that the action was not 
commenced within the time limited, can only be taken by an- 
swer. 

CHAPTER II. 

ACTIONS FOR THE RECOVERY OF REAL PROPERTY — TIME OF COM- 
MENCING. 

§18. — When the State will not sne; Thirty years possession; Twenty-one 
one years possession under colorable title. 

The State will not sue any person for, or in respect of, any 
real property, or the issues or profits thereof, by reason of the 
right or title of the State to the same ; 

1. When the person in possession thereof, or those under 
whom he claims, shall have been in the adverse possession 
thereof for thirty years, such possession having been ascertain- 
ed and identified under known and visible lines or boundaries ; 
and such possession, so held, shall give a title in fee to the pos- 
sessor. 

2. When the person in possession thereof, or those under 
whom he claims, shall have been in possession under colorable 
title for twenty-one years, such possession having been ascer- 
tained and identified under known and visible lines or bound- 
aries. 

§19. — Snch possession valid against claimants nnder the State. 

All such possession as is described in the preceding section, 
under such title as is therein described, is hereby ratified and 



12 THE CODE OF 

•confirmed, and declared to be a good and legal bar against 
the entry or suit of any person under the right or claim of the 
State. 



$20. — When persons having Title mnst sue. 

"When the person in possession of any real property, or those 
under whom he claims, shall have been possessed of the same, 
under known and visible lines and boundaries, and under col- 
orable title for seven years, no entry shall be made or action 
sustained against such possessor, by any person having any 
right or title to the same, except during the seven years next, 
after his right or title shall have descended or accrued, who in 
default of sueing within the time aforesaid, shall be excluded 
from any claim thereafter to be made ; and- such possession, so 
held, shall be a perpetual bar against all persons ; subject to 
the qualifications in sections twenty-eight and twenty-nine of 
this title. 

$21, — Proviso in case of Judgment for Plaintiff reversed^ &c. 

If in any action for real property, the plaintiff be non-suited, 
or judgment be given for him, and the same be reversed for 
error, or a verdict pass for the plaintiff, and judgment thereon 
be arrested, then in any such case, the plaintiff may commence 
a new action from time to time, within one year after non-suit, 
judgment reversed or stayed as aforesaid, notwithstanding the 
time limited in the foregoing section (twenty) for bringing 
such action as may have expired, if the action first brought, 
was commenced within the time above prescribed for bringing 
such actions. 

$22. — Seizure within twenty years when necessary. 

No action for the recovery of real property , or the possession 
thereof, shall be maintained, unless it appear that the plaintiff, 
or those under whom he claims, was seized or possessed of the 
premises in question within twenty years before the commence- 
ment of such action ; subject to the qualifications in sections 
twenty-nine and thirty. 



CIVIL PROCEDURE. 13 

§23. — Wben adverse possession for twenty years. 

No action for the recovery of real property, or the posses- 
sion thereof, or the issues and profits thereof, shall be main- 
tained when the person in possession thereof, or the defendant 
in such action, or those under whom he claims shall have pos- 
sessed such real property under known and visible lines and 
boundaries adversely to all other persons for twenty years ; 
and such possession, so held, shall give a title in fee to the pos- 
sessor, in such property, against all persons not under disability. 

§24, — Action after Entry. 

No entry upon real estate shall be deemed sufficient or valid, 
as a claim, unless an action be commenced thereupon, within 
one year after the making of such entry, and within the time 
prescribed in this title. 

§25, — Possession presumed — Occupation when deemed under legal Title. 

In every action for the recovery of real property, or the 
possession thereof, or damages for a trespass on such posses- 
sion, the person establishing a legal title to the premises, shall 
be presumed to have been possessed thereof within the time 
required by law ; and the occupation of such premises by any 
other person shall be deemed to have been under and in sub- 
ordination to the legal title, unless it appears that such premi- 
ses have been held and possessed adversely to such legal title, 
for the time prescribed by law before the commencement of 
such action. 

§26.— Relation of Landlord and Tenant. 

Whenever the relation of landlord and tenant shall have 
existed between any persons, the possession of the tenant shall 
be deemed the possession of the landlord, until the expiration 
of twenty years from the termination of the tenancy ; or where 
there has been no written lease, until the expiration of twenty 
years from the time of the last payment of rent, notwithstand- 
ing that such tenant may have acquired another title, or may 
have claimed to hold adversely to his landlord. But such pre- 
sumptions shall not be made after the periods herein limited. 



14 THE CODE OF 

§27, — Persons nnder disabilities. 

If a person entitled to commence any action for the recovery 
of real property, or to make an entry or defence founded on 
the title to real property, or to rents and services out of the 
same, be, at the time such title shall descend or accrue, either, 

1. Within the age of twenty-one years, or 

2. Insane, or 

3. Imprisoned on a criminal charge, or in execution upon 
conviction of a criminal offence, or 

4. A married woman ; 

Then such person may, notwithstanding the time of limita- 
tion prescribed in this title be expired, commence his action, 
or make his entry, within three years next after full age, com- 
ing of sound mind, enlargement out of prison, or discoverture, 
and at no time thereafter. 
§28.— Cumulative Disabilities, 

When two or more disabilities shall co-exist, or when one 
disability shall supervene an existing one, the period prescribed 
within which on action may be brought, shall not begin to run 
until the termination of latest disability. 

§29.— Rail Roads, &e., not barred. 

No Rail Road, Plank Road, Turnpike or Canal Company, 
shall be barred of, or presumed to have conveyed, any real 
estate, right of way, easement, leasehold or other interest in 
the soil which may have been condemned, or otherwise obtained 
for its use, as a right of way, depot, station-house or place of 
landing, by any statute of limitation or by occupation of the 
same by any person whatever. 



CHAPTER III. 

ACTIONS OTHER THAN FOE THE RECOVERY OF REAL PROPERTY — 
TIME OF COMMENCING. 

§30. — Periods of Limitation prescribed. 

The periods prescribed for the commencement of actions, 
other than for the recovery of real property, shall be as fol- 
lows : 



CIVIL PROCEDURE. 15 

§31. — Ten years. 

Within ten years. 

1. An action upon a judgment or decree of any Court of the 
United States, or of any State or territory thereof; 

2. An action upon a sealed instrument not negotiable, 
against the principals thereto; 

3. An action for the foreclosure of a mortgage, or deed in 
trust for creditors with a power of sale, of real property, where 
the mortgagor or grantor has been in possession of the prop- 
erty, within ten years after the forfeiture of the mortgage, or 
after the power of sale became absolute, or within ten years 
after the last payment on the same ; 

4. An action for the redemption of a mortgage, where the 
mortgagee has been in possession, or for a residuary interest 
under a deed in trust for creditors, where the trustee or those 
holding under him, shall have been in possession ; within ten 

years after the right of action accrued. 

§32.— SeTcn years. 

Within seven years. 

1. On a judgment rendered by a Justice of the Peace. 

2. By any creditor of a deceased person against his personal 
or real representative ; within seven years next after the quali- 
fication of the executor or administrator and his making the 
advertisement required by law, for creditors of the deceased to 
present their claims, where no personal service of such notice 
in writing is made upon the creditor ; and a creditor thus bar- 
red of a recovery against the representative of any principal 
debtor, shall also be barred of a recovery against any surety 
to such debt. 

33. — Six years. 

Within six years. 

1. An action upon the official bond of any public officer. 

2. An action against any executor, administrator, or guar- 
<1 ian on his official bond, within six years after the auditing of 
his final accounts by the proper officer, and the filing of such 
audited account as required by law. 

3. An action for injury to any incorporeal hereditament. 



16 THE CODE OF 

$34. — Three years. 

Within three years. 

1. An action upon a contract, obligation, or liability arising 
out of a contract, express or implied, except those mentioned 
in the preceding sections ; 

2. An action upon a liability created by statute,' other than 
a penalty or forfeiture, unless some other time be mentioned in 
the statute, creating it ; 

3. An action for trespass upon real property; 

4. An action for taking, detaining, converting, or injuring 
any goods or chattels, including actions for their specific re- 
covery ; 

5. An action for criminal conversation, or for any other in- 
jury to the person or rights of another, not arising on contract 
and not hereinafter enunciated ; 

6. An action against the sureties of any executor, adminis- 
trator or guardian, on the official bond of their principal : 
within three years after the breach thereof complained of; 

7. An action against bail ; within three years after judgment 
against their principal, but bail may discharge themselves by a 
surrender of their principal, at a/iy time before final judgment 
against them ; 

8. Fees due to any clerk, sheriff or other officer, by the 
judgment of a Court ; within three years from the time of the 
judgment rendered, or of the issuing of the last execution 
therefor ; 

9. An action for relief on the ground of fraud, in cases 
which heretofore were solely cognizable by Courts of Equity, 
the cause of action in such case not to be deemed to have 
accrued until the discovery by the aggrieved party, of the facts 
constituting fraud. 

$35.— One year. 

1. An action against a sheriff, coroner, or constable, or other 
public officer for a trespass under color of his office ; 

2. An action upon a statute, for a penalty or forfeiture, 
where the action is given to the State alone, or in whole or 



CIVIL PROCEDURE. 17 

in part, to the party grieved, or to a common informer, ex- 
cept where the statute imposing it prescribes a different 
limitation ; 

3. An action for libel, assault, battery, or false imprison- 
ment; 

4. An action against a sheriff or other officer, for the. 
escape of a prisoner arrested or imprisoned on civil process; 

5. An action by a creditor of any deceased person, on 
whom personal notice in writing to present his claim to the 
personal representative of the deceased has been served, and 
who has failed so to do, within one year after the service of 
such notice, and any such creditor, barred of a recovery 
against the personal representative of a principal debtor, 
by reason of such default, shall also be barred of a recoverv 
against the sureties for such debt. 

436.— Six Months. 

Within six months. 

1. An action for slander. 

•; 37.— Action for other Relief. 

An action for relief not herein provided for, must be com- 
menced within ten years after the cause of action shall have 
acciued. 

§38.— Actions by the State; Limitations to apply to. 

The limitations prescribed in this chapter shall apply to 
civil actions brought in the name of the State, or for its 
benefit, in the same manner as to actions by or for the ben- 
efit of private parties. 

>39.— Action upon an account Current, when cause accrnps. 

In an action brought to recover a balance due upon a 
mutual, open and current account, where there-have been 
reciprocal demands between the parties, the cause of action 
shall be deemed to have accrued from the time of the latest 
item proved in the account on either side. 

9 



18 THE CODE OF 

CHAPTER III. ' 

i • 

GENERAL PROVISIONS AS TO THE TIME OF COMMENCING ACTIONS. 

$40. — When action deemed commenced. 

An action is commenced as to each defendant when the 
summons is issued issued against him. 

441.— Exception; Defendant out of the State. 

If when the cause of action accrue against any person, he 
shall be out of the State, such action may be commenced 
within the terms herein respectively limited, after the return 
of such person into this State ; and if after such cause of 
action shall have accrued, such person shall depart from 
and reside out of this State, or remain continuously absent 
therefrom for the space of one year or more, the time of his 
absence shall not be deemed or taken as any part of the time 
limited for the commencement of such action. 

442. — Exceptions; Persons under Disabilities. 

If a person entitled to bring an action mentioned in the 
last chapter, except for a penalty or forfeiture, or against a 
sheriff or other officer for an escape, be at the time the cause 
of action accrued, either, 

1. Within the age of twenty-one years; or 

2. Insane; or 

3. Imprisoned on a criminal charge, or in execution under 
the sentence of a criminal court for a term less than his 
natural life; or 

4. A married woman; 

Then such person may bring their actions within the times 
before limited, after their disabilities shall be removed. 

§43.— Death of person entitled, before limitation expires. 

If a person entitled to bring an action die before the 
expiration of the time limited for the commencement thereof, 
and the cause of action survive, an action may be com- 
menced by his representatives after the expiration of that 



CIVIL PROCEDURE. 19 

time, and within one year from his death. If a person 
against whom an action may be brought die before the 
expiration of the time limited for the commencement thereof, 
and the cause of action survive, an action may be com- 
menced against his executors or administrators after the 
expiration of that time, and within one year after the issuing 
of letters testamentary or of administration. 

§14.— Actions by Aliens; time of war not counted. 

When a person shall be an alien, subject or citizen of a 
country, at war with the United States, the time of the con- 
tinuance of the war shall not be part of the period limited 
for the commencement of the action. 

§45.— Where judgment reversed &c ; Plaintiff' may commence new 

action. 

If an action shall be commenced within the time pre- 
scribed therefor, and the plaintiff be non-suited, or a judg- 
ment therein be reversed on appeal, or be arrested, the plain- 
tiff, or if he die and the cause of* action survive, his heirs or 
representatives may commence a new action within one 
year after such non-suit, reversal, or arrest of judgment. 

§46.— Time of Stay by Injunction. &C, not counted. 

When the commencement of an action shall be stayed by 
injunction or statutory prohibition, the time of the contin- 
uance of the injunction or prohibition shall not be part of 
the time limited for the commencement of the action. 

$47.— Time during controversy about Probate of Will, «Scc, not 
counted. 

In reckoning time when pleaded as a bar to suits, that 
period shall not be counted, which elapses during any con- 
troversy on the probate of a will or granting letters of ad- 
ministration, unless there be an administrator, appointed 
during the pendency of thesuit, and it be provided by law, 
that suit may be brought aga:'rist him. 



20 THE CODE OF 

§48. — Disability must exist wheii the right of action accrued. 

No person shall avail himself of a disability, unless it 
existed when his right of action accrued. 

§49. — Where several Biasbilities, all must he removed. 

Where two or more disabilities shall co-exist at the time 
the right of action accrues, the limitation shall not attach 
until they all be removed. 

§50.— Acknowledgment h} r partner, &c, after dissolution. 

No act, admission or acknowledgment by any partner 
after the dissolution of the co-partnership, or by any of the 
makers of a promissory note or bond after the statute of 
limitations shall have barred the same, shall be received as 
evidence to repel the statute, except against the partner or 
maker of the promissory note or bond, doing the act, or 
making the admission or acknowledgment. 

§51. — Acknowledgment or new promise must be in writing - . 

No acknowledgment or promise shall be received as evi- 
dence of a new or continuing contract, whereby to take the 
case out of the operation of this title, unless the same be 
contained in some writing signed by the party to be charged 
thereby; but this section shall not alter the effect of any 
payment of principal or interest. 

§52. — Co-tenants; when some barred, and others not. 

In actions by tenants in common or joint tenants of per- 
sonal property to recover the same, or damages for the 
detention of or injury thereto, and any of them shall be 
barred of their recovery by limitation of time, the rights of 
the other shall not be affected thereby; but they may 
recover according to their right and interest notwith- 
standing such bar. 

§53.— This title not applicable 1© bills, &e., c! corporations, or (o biiiik 
noicst 

This title shall not affect actions to enforce the payment 
of bills, notes or other evidences of debt, issued by moneyed 
corporations, or issued or put in circulation as money. 



CIVIL PROCEDURE. 21 

§51 — Nor to actions against Directors, &c, of 3Ioneyed Corporations or 
Banking Associations^ Limitation in such cases prescribed. 

This title shall not affect actions against directors or 
stockholders of any moneyed corporation, or banking asso- 
ciation which shall hereafter be incorporated by or under 
the laws of this State, to recover a penalty or forfeiture 
imposed, or to enforce a liability created by law; but such 
actions must be brought within three years after the dis- 
covery by the aggrieved party, of the facts upon which the 
penalty or forfeiture attached, or the liability was created. 



• TITLE Y. 

PARTIES TO CIVIL ACTIONS. 

§55. — Action to be by party in interest. Action by g f laud held- 

adverse!}*. — Assignment of thisig in action. 

Every action must be prosecuted in the name of the real 
party in interest, except as otherwise provided in section 
fifty-seven; but this section shall not be deemed to 
authorize the assign mentof a thing in action not aris- 
ing out of contract. But an action may be maintained 
by a grantee of land in the name of a grantor, or 
his or her heirs or legal representatives, when the grant or 
grants are void by reason of the actual po. ; of a 

person claiming under a. title adverse to that of the grantor 
at the time of the delivery of the grant, and the plaintiff 
shall be allowed to prove the facts to bring the case within 
this provision. 

In the case of an assignment of a thing in action, the 
action by the assignee shall be without prejudice to any 
set-off or other defence existing at the time of, or 1 
notice of, the assignment; but this section shall not apply 
to a negotiable promissory note or bill of exchange, trans- 
ferred in good faith, and u\ I consideration, before due. 



22 THE CODE OF 

§56. — Action by, and against, a Married Woman. 

When a married woman is party, her husband must be 
joined with her except that, 

1. When the action concerns her separate property she 
may sue alone; 

2. When the action is between herself and her husband, 
she may sue or be sued alone; 

And in no case need she prosecute or defend by a guardian 
or next friend. 

§57.— Action by Executor, Trustee, &«. 

An executor or admininistrator, a trustee of an express 
trust, or a person expressly authorized by statute, may sue, 
without joining with him the person for whose benefit the 
action is prosecuted. A trustee of an express trust, within 
the meaning of this section, shall be construed to include a 
person with whom or in whose name a contract is made for 
the benefit of another. 

^58.— Infant to appear by Guardian. 

When an infant is a party, he must appear, by guardian, 
who may be a testamentary or general guardian, appointed 
as is provided by law for the appointment of such guardians, 
or a guardian for the prosecution or defence of the par- 
ticular action, appointed by the court in which the action is 
prosecuted. 

§59. — Appointment of Guardian in Parthalar action. 

A guardian to prosecute or defend a particular action in 
behalf of an infant shall be appointed as follows: 

1. When the infant is plaintiff, upon the application of 
the infant, if he be of the age of fourteen years; or if under 
that age, upon the application of his general or testamen- 
tary guardian, if he has any, or of a relative or friend of the 
infant: if made by a relative or friend of an infant, notice 
thereof must be first given to such guardian, if he has one; 
if he has none, then to the person with whom such infant 
resides. An infant plaintiff, or his guardian, must give 
security for the costs of the defendant, as is required of 
plaintiffs. 



CIVIL PROCEDURE. 23 

2. When the infant is defendant, upon the application of 
the infant, if he be of the age of fourteen years, and apply 
within twenty days after service of the summons. If he be 
under the age of fourteen, or neglect so to apply, then upon 
the application of any other party to the action, or of a 
relative or friend of the infant, after notice of such appli- 
cation being first given to the general or testamentary 
guardian of such infant, it he has one within this State : if 
he has none, then to the infant himself, if over fourteen 
years of age, and within the State ; or if under that age and 
within the State, to the person with whom such infant 
resides. 

3. And in actions for the partition of realpioperty, or for 
the foreclosure of a mortgage or other instrument, when an 
infant defendant resides out of the State, or is temporarily 
absent therefrom, the plaintiff may apply to the court in 
which the action is pending, and will be entitled to an order 
designating some suitable person to be the guardian for the 
infant-defendant for the purpose of the action, unless the 
infant-defendant or some one in his bohalf, within a number 
of days after the service of a copy of the order, which num- 
ber of days shall be in the said order specified, shall pro- 
cure to be appointed a guardian for the said infant, and the 
court shall give special direction in the order for the man- 
ner of the service thereof, which may be upon the infant. 

4. Andin case an infant-defendant havingan interest in the 
event of the action, shall reside in any State, with which 
there shall not be a regular communication by mail, on such 
facts satisfactorily appearing to the Court, the Court may 
appoint a guardian ad litem for such absent infant party, for 
the purpose of protecting the right of such infant in said 
action, and on such guardian ad litem, process, pleadings 
and notices may be served in the like manner as upon a 
party residing in this State. 

§60.— Who to be the plaintiff. 

All persons having an interest in the subject of the action, 
and in obtaining the relief demanded, may be joined as 
plaintiffs, except as otherwise provided in this title. 



24 ■ THE CODE OF 

§61. — Wno to be defendant. 

Any person may be made a defendant who has, or claims, 
an interest in the controversy adverse to the plaintiff, or 
who is a necessary party to a complete determination or set- 
tlement of the questions involved therein; and in an action 
to recover the possession of real estate, the landlord and 
tenant thereof may be joined as defendants; and any person 
claiming title or right of possession to real estate, may be 
made parties plaintiff or defendant, as the case may require^ 
to any such action. 

§62. — Parties to be joined, &t. 

Of the parties to the action, those who are united in inter- 
est must be joined as plaintiffs or defendants ; but if the 
consent of any one who should have been joined as plaintiff 
cannot be obtained, he may be made a defendant, the reason 
thereof being stated in the complaint ; and when the ques- 
tion is one of a common or general interest of many persons, 
or where the parties may be very numerous, and it may be 
impracticable to bring them all before the Court, one or 
more may sue or defend for the benefit of the whole. 

§83. — Parlies to bills and noles, &c. 

Persons severally liable upon the same obligation or 
instrument, including the parties to bills of exchange and 
promissory notes, may all or any of them be included in the 
same action at the option of the plaintiff. 

§64. — Exls^lag salts. Action when not to aba'e. 

1. No action shall abate by the death, marriage or other dis- 
ability of a party, or by the transfer of any interest therein, 
if the cause of action survive or continue. In case of death 
marriage or other disability of a party, the Court on motion 
at any time within one year thereafter, or afterwards on a 
supplemental complaint, may allow the action to be con- 
tinued by, or against, his representative or successor in inter- 
est. In case of any other transfer of interest, the action 
shall be continued in the name of the original party, or the 
Court may allow the person to whom the transfer is made,, 
to be substituted in the action. 



CIVIL PROCEDURE. 25 

2. After a verdict shall be rendered in any action for a wrong, 
such action shall not abate by the death of any party, but 
the cases shall proceed thereafter in the same manner as in 
cases where the cause of action now survives by law. 

3. At any time after the death, marriage, or other disability 
of the party plaintiff, the Court in which an action is pend- 
ing, upon notice to such persons as it may direct, and upon 
application of any person aggrieved, may in its discretion, 
order that the action be deemed abated, unless the same be 
continued by the proper parties, within a time to be fixed 
by the Court, not less than six months, nor exceeding one 
year from the granting of the order. 

4. The provisionsof this section shall apply as well to actions 
existing at the ratification of this act, as to those commenced 
subsequently thereto. 

§65.— Court may determine controversy and interpleader. 

The Court either between the terms, or at a regular term, 
according to the nature of the controversy, under the regu- 
lations contained in this Act, may determine any controversy 
before it, when it can be done without prejudice to the rights 
of others, or by saving their rights; but when a complete 
determination of the controversy cannot be had without the 
presence of other parties, the Court must cause them to be 
brought in. 

And when in an action for the recovery of real or personal 
property, a person not a party to the action, but having an 
interest in the subject thereof, makes application to the Court 
to be made a party, it may order him to be brought in by 
the proper amendment, 

A defendant against whom an action is pending upon a 
contract, or for specific real or personal property, may at any 
time before answer, upon affidavit, that a person not a parly 
to the action, and without collusion with him, makes against 
him a demand for the same debt or property, upon due 
notice to such person and the adverse party, apply to the 
Court for an order to substitute such person in his place, 



26 THE CODE OF 

and discharge him from liability to either party, on his 
depositing in Court the amount of the debt, or delivering 
the property or its value, to such person as the Court may 
direct; and the Court may, in its discretion, make the order. 



TITLE VI. 

OF THE PLACE OF TRIAL OF CIVIL ACTIONS. 

§66. — Actions to be tried where sabjcct-niatter situated. 

Actions for the following causes must be tried in the 
county in which the subject of the action, or some part 
thereof, is situated, subject to the power of the Court to 
change the place of trial, in the cases provided in this Code. 

1. For the recovery of real property, or of an estate or 
interest therein, or for the determination in any form, of 
such right or interest, and for injuries to real property ; 

2. For the partition of real property ; 

3. For the foreclosure of a mortgage of real property; 

4. For the recovery of personal property distrained for 
any cause. 

07. — Actions to be tried where cause of action arose. 

Actions for the following causes must be tried in the 
county where the cause, or some part thereof, arose, subject 
to the like power of the Court to change the place of trial, 
in the cases provided in this Code; 

1. For the recovery of a penalty or forfeiture, imposed by 
statute ; except that, when it is imposed for an offence com- 
mitted on a sound, bay, river or other body of water situated 
in two or more counties, the action may be brought in any 
county bordering on such sound, bay, river or other body of 
water, and opposite to the place where the offence was com- 
mitted; 



CIVIL PROCEDURE. 27 

2. Against a public officer or person especially appointed 
to execute his duties, for an act done by him by virtue of 
his office ; or against a person who by his command, or in 
his aid, shall do anything touching the duties of such officer. 

§68.— Action, to be tried where Defendant resides. 

In all other cases the action shall be tried in the County 
in which the defendants, or any of them shall reside at the 
commencement of the action; or if none of the defendants 
shall reside in the State, then in the County in which the 
plaintiffs or any of them shall reside; and if none of the par- 
ties shall reside within the State, then the same may be tried 
in any county which the plaintiff shall designate in his sum- 
mons and complaint, subject however, to the power of the 
Court to change the place of trial, in the cases provided by 
statute. 

f69.— Change of place of trial. 

If the County designated for that purpose in the summons 
and complaint bo not the proper County, the action, may, 
notwithstanding, be tried therein, unless the defendant, 
before the time of answering expires, demand in writing that 
the trial be had in the proper County, and the place of trial 
be thereupon changed by consent of parties, or by order of 
the Court, as is provided in this section. 

The Court may change the place of trial in the following 
cases: 

1. When the County designated for that purpose is not 
the proper County. 

2. When the convenience of witnesses and the ends of 
justice would be promoted by the change. 

When the place of trial is changed, all other proceedings 
shall be had in the County to which the place of trial is 
changed, unless otherwise provided by the consent of the 
parties in writing duly filed, or order of Court; and the 
papers shall be filed or transferred accordingly. 



28 THE CODE OF 

TITLE YII. 

OF THE MANNER OF COMMENCING CIVIL ACTIONS, AND THE SERVICE OF 
THE SUMMONS. 

§70. — Maimer of commencing civil actions. 

Civil actions in the Superior 'Courts of this State shall be 
commenced by the issuing of a summons. 

§71. — By whom issued, &c. 

The summons shall be issued by a Clerk of any Superior 
Court at the request of the plaintiff; but before issuing it, 
the Clerk shall require of the plaintiff, either to give a bond 
with sufficient sureties, in the sum of two hundred dollars, 
with the condition that the same shall be void if the plaintiff 
shall pay the defendant all such costs as the defendant shall 
recover of him in the action; or to deposit a like sum with 
him as a security to the defendant for such costs, and in case 
of such deposit he shall give to the plaintiff and to the defen- 
dant a certificate to that effect; or to hie with him a written 
authority from some Judge of a Superior Court authorizing 
the plaintiff to sue as a pauper. 

§12.— Power to sue as ;\ pauper; Slow ©btai 

Any Judge of the Superior Court may authorize any 
person to sue as a pauper when he shall exhibit to the Judge 
a certificate from some licensed attorney: 

1. That he has examined the ease of the plaintiff, and 
believes that he ha goo,d and meritorious cause of action 
in fact and law; and, 

2. That he will prosecute the action of the plaintiff as his 
attorney and counsel without any fee or reward whatever; 
and when it shall also appear to the Judge, by the affidavit 
of the plaintiff or otherwise, that the plaintiff is unable to 
give the sureties or make the deposit required. 

Whenever any pers< n i hall be allowed to sue -as a pauper, 
no officer shall require of him any fee, and he shall recover 
no costs. 



CIVIL PROCEDURE. 29 

^73. — Form of the sammous. 

The summons shall run in the name of the State, be 
signed by the Clerk of a Superior Court, under the seal of 
his Court, and be directed to the sheriff of the county in 
which the defendant resides or may be found, or in case 
.such sheriff be a party to, or interested in, the action, 
it may be directed to the coroner of that county, or 
to the sheriff of any adjoining- county. It shall com- 
mand the officer to summon the defendant to appear at the 
office of the Clerk of the Superior Court for some certain 
county, within a certain number of days after the service, 
exclusive of the day of service, to answer the complaint of 
the plaintiff. It shall be dated on the day of its issue. 

j;} i. — What summons to eoataiih 

There shall also be inserted in the summons, a notice in 
substance as follows: 

1. In an action arising on contract for the recovery of 
money only, that the plaintiff will take judgment for a sum 
specified therein, if the defendant shall fail to answer the 
complaint within the time specified. 

2. In other actions, that if the defendant shall fail to 
answer the complaint within the time. specified, the plaintiff 
will apply to the Court for the relief demanded in the com- 
plaint. The Clerk before whom the defendant shall be sum- 
moned to appear, shall be the Clerk of the Superior Court of 
the county in which it is provided in Title VI, that the 
action shall be tried. 

3. The number of days within which the defendant is sum- 
moned to appear, shall, in no case, be less than twenty, 
exclusive of the day of service, to which one day shall lie- 
added for every twenty-five miles of distance between the 
Court-house of the county in which the service is made, and 
the Court-house of the county at which the defendant is 
required to appear, by the usual route of travel. 

. *■ ". — Return of summons. 

The officer to whom the summons is addressed shall note- 
on it the day of its delivery to him, and execute it within 



30 THE CODE OF 

ten days after its receipt by him. Before proceeding to 
execute it, lie shall be entitled to require of the plaintiff his 
fee for the service, and five cents per mile of the distance 
from the Court-house of his county, to the usual residence 
of the defendant or other place in which he may be found 
in the county; if required by the plaintiff he shall execute 
the writ immediately, and in that case he shall be entitled 
in like manner to require ten cents per mile, measured as 
aforesaid. When executed he shall immediately return the 
writ, with the date and maimer of its execution, by mail or 
otherwise, to the Clerk of the proper Court, 

§T6.— Service of the complaint. 

A copy of the complaint may or may not be served with 
the summons. In either case the plaintiff must file a copy 
thereof, with the Clerk of the Court before which the defen- 
dant is summoned to appear within ten days from the issu- 
ing- of the summons; and in case no copy shall have been 
issued with the summons, he shall also within the said time 
file with the Clerk another copy thereof, addressed to, and 
for the use of, the defendant, or if there be several defen- 
dants, a copy for each of them, provided however, if several 
defendants appear by one attorney, one copy only need be 
filed for all who so appear. 

£77, — Plaintiff' failing to file Complaint within ten days. 

If the plaintiff shall fail to file his complaint within ten 
days after the issuing of his summons, then the defendant 
may at any time before the filing of such complaint, and 
within the time limited for his appearance, enter an appear- 
ance specifying where within the State, a copy of the com- 
plaint may be served on him, and the plaintiff at his own 
expense, shall cause such copy, to be served within sixty 
days; and the defendant shall not be required to answer 
until the twentieth day after such service. 

£7$.— Plaintiff failing to file Complaint within the time for Defendants, appear- 
enee, may be non-suited. 

If the plaintiff shall fail to file his complaint within the 
time limited by the summons, for the appearance and answer 



CIVIL PEOCEEURE. 31 

of the defendant, or by the next preceding section, the de- 
fendant shall be entitled to demand judgment of non-suit 
against the plaintiff. 

=?T9.— Time of filing pleadings may be enlarged. 

The time for filing the complaint or of any pleading what- 
ever, may be enlarged by the Court for good cause shown 
by affidavit, but it shall not be enlarged by more than twenty 
additional days nor more than once, unless the default shall 
have been occasioned by accident over which the party 
applying had no control, or by the fraud of the opposing 
party; and in all cases in which the time shall be enlarged 
unless upon the ground of such accident or frand, the party 
making the application shall pay into Court for the use of 
the opposing party five dollars, which shall not in any event 
be recovered back. Three days notice must be given of the 
motion to enlarge. 

£80.— Plaintiff shall name an attorney, in the county, town &<•. 

At the time of filing his complaint the plaintiff, and at the 
time of filing his answer, the defendant, shall name some 
place and person in the county town in which the Court to 
which the action is brought is held, Avhere and upon whom, 
service of pleadings and notices in the action may be served ; 
and if either shall fail to do so, the filing of all such plead- 
ings and notices in the office of the clerk of the Court shall 
be deemed sufficient service on the day of such filing, unless 
the party shall in writing on the copy of his complaint, or 
answer, or by other written notice, served on the adverse 
party, require personal service thereof, at a place named by 
him within the county, and shall deposit with the clerk a 
sum sufficient to pay the expense of such personal service ; 
in which case, the personal service shall be made at his 
expense. 

/' 
§81. — IfotiM of no pergonal claim. 

In case of a defendant against whom no personal claim is 

made, -the plaintiff may deliver to such defendant with 



32 THE CODE OF 

the summons, a notice subscribed by the plaintiff or his 
attorney, setting forth the general object of the action, a 
brief description of the property affected by it, if it affects 
real or personal property, and that no personal claim is made 
against such defendant, in which case no copy of the com- 
plaint need be served on such defendant, unless within the 
time for answering, he shall in writing demand the same. 
If a defendant on whom such notice is served, unreasonably 
defend the action, he shall pay costs to the plaintiff. 

§82. — Manner of service of summons. 

The summons shall be served by delivering a copy thereof 
as follows: 

1. If a suit be against a corporation, to the President, or 
other head of the corporation, secretary, cashier, treasurer, 
a director or managing agent thereof; but such service can 
be made in respect to a foreign corporation, only when it has 
property within the State, or the cause of action arose therein, 
or where the plaintiff resides in the State, or where such 
service can be made within this State personally upon the 
President, Treasurer or Secretary thereof; 

2. If against a minor under the age of fourteen years to 
such minor personally, and also his father, mother or guar- 
dian, or if there be none within the State, then to any per- 
son having the care and control of such minor, or with whom 
he shall reside, or in whose service he shall be employed ; 

3. If against a person judicially declared to be of unsound 
mind, or incapable of conducting his own affairs in conse- 
quence of habitual drunkenness and for whom a committee 
or guardian has been' appointed, to such committee and to the 
defendant personally; 

4. In all other cases, to the defendant personally. 

§83.— Service by publication *, form of Summons. 

Where the person on whom the service of the summons is 
to be made, cannot, after due diligence, be found within the 
State, and that fact appears by affidavit to the satisfaction 
of the Court, or a Judge thereof, and it in like manner 



CIVIL PROCEDURE. 33 

appears that a cause ot action exists against the defendant in 
respect to whom the service is to be made, or that he is a pro- 
per party to an action relating to real property in this State, 
such Court or Judge may grant an order that the service be 
made by the publication of a summons in either of the fol- 
lowing cases: 

1. Where the defendant is a foreign corporation, and has 
property within the State, or the cause of action arose 
therein ; 

2. Where the defendant, being a resident of this State, 
has departed therefrom, with intent to defraud his creditors, 
or to avoid the service of a summons, or keeps himself con- 
cealed therein with a like intent; 

3. Where he is not a resident of this State, but has pro- 
perty therein, and the Court has jurisdiction of the subject 
of the action. 

4. Where the subject of the action is real or personal pro- 
perty in this State, and the defendant has or claims a lien 
or interest, actual or contingent, therein, or the relief de- 
manded consists wholly or partly, in excluding the defen- 
dant from any lien or interest therein. 

5. Where the action is for divorce, in the cases prescribed 
by law. 



§84. — Manner and effect of publication. 

The order must direct the publication in any one or two 
newspapers to be designated as most likely to give notice 
to the person to be served, and for such length of time as 
may be deemed reasonable, not less than once a week for 
six weeks. In case of publication the Court or Judge must 
also direct a copy of the summons and complaint to be forth- 
with deposited in the post office, directed to the person to 
be served, at his place of residence, unless it appears that 
such residence is neither known to the party making the 
application, nor can with reasonable diligence be ascer- 
tained by him. When publication is ordered, personal ser- 



34 THE CODE OP 

vice of a copy of the summons and complaint, out of the 
State, is equivalent to publication and deposit in the post 
office. 

§85. — Defendant allowed to defend before and after judgment. 

The defendant against whom publication is ordered, or his 
representatives, on application and sufficient cause shown at 
any time before judgment, must be allowed to defend the 
action; and, except in an action for divorce, the defendant 
against whom publication is ordered, or his representatives, 
may in like manner, upon good cause shown, be allowed to 
defend after judgment, or at any time within one year after 
notice thereof, and within five years after its rendition, on 
such terms as may be just; and if the defence be successful 
and the judgment, or any part thereof, have been collected, 
or otherwise enforced, such restitution may thereupon be 
compelled as the court may direct; but the title to property 
sold under such judgment to a purchaser in good faith shall 
not be thereby affected. And in all cases where publication 
is made, the complaint must be first filed, and the summons 
as published must state the time and place of such filing. 

§86.— Actions for foreelosnre of mortgages. 

In actions for the foreclosure of mortgages on real estate, 
already instituted, or hereafter to be instituted, if any party 
having any interest in or lien upon such mortgaged premises, 
is unknown to the plaintiff, and the residence of such party 
eannot, with reasonable diligence, be ascertained by him, 
and such fact shall be made to appear by affidavit, to the 
court, such court may grant an order that the summons be 
served on such unknown party by publishing the same for 
six weeks once in each week successively, in one newspaper 
printed in Raleigh, and in a newspaper printed in the county 
where the premises lie, if there be any, which publication 
shall be equivalent to a personal service on such unknown 
party. 

§87. — Joint and several debtors; Partmrs. 

Where the action is against two or more d3fendants, and 



CIVIL PROCEDURE. 35 

the summons is served on one or more of them, but not on 
all them, the plaintiff may proceed as follows : 

1. If the action be against defendants jointly indebted 
upon^contract. he may proceed against the defendants served 
unless the court otherwise direct; and if he recover judg- 
ment, it may be entered against all the defendants thus 
jointly indebted, so far only as that it may be enforced against 
the joint property of all, and the separate property of the 
defendants served, and if they are subject to arrest, against 
the persons of the defendants served ; or 

2. If the action be against defendants severally liable, he 
may proceed against the defendants served, in the same 
manner as if they were the only defendants. 

3. If all the defendants have been served, judgment may 
be taken against any or either of them severally, when the 
plaintiff would be entitled to judgment against such defen- 
dant or defendants if the action had been against them or 
any of them alone. 

4. If the name of one or more partners, shall, for any 
cause have been omitted in any action in which judgment 
shall have passed against the defendants named in the sum- 
mons, and such omission shall not have been pleaded in 
such action, the plaintiff in case the judgment therein shall 
remain unsatisfied, may by action recover of such partner 
separately, upon proving his joint liability, notwithstanding 
he may not have been named in the original action ; but the 
plaintiff shall have satisfaction of only one judgment ren- 
dered for the same cause of action. 

§88. — When service complete. 

In the cases in which service by publication is allowed, 
the summons shall be deemed served at the expiration of 
the time prescribed by the order of publication. 

$89.— Proof of service. 

Proof of the service of the summons and of the complaint 
or notice, if any accompanying the same, must be : 

1. By the certificate of the sheriff or other proper officer. 

2. In case of publication, the affidavit of the printer, or 



36 THE CODE OF 

his foreman, or principal clerk, showing the same, and an 1 
affidavit of a deposit of a copy of the summons in the post 
office as required by law, if the same shall have been 
deposited; or 

3. The written admission of the defendant. 

In case of service otherwise than by publication, the 
certificate' or admission must state the time and place of 
service. 

<j00. —Jurisdiction — Appearance — Notice of lis pendens. 

From the time of the service of the summons in a civil 
action, or the allowance of a provisional remedy, the court 
is deemed to have acquired jurisdiction, and to have control 
of all the subsequent proceedings. A voluntary appearance 
of a defendant is equivalent to personal service of the sum- 
mons upon him. 

In an action affecting the title to real property, the plain- 
tiff, at the time of filing the complaint, or at any time after- 
wards, or whenever a warrant of attachment, under chapter 
four, of title ten, of this Code, shall be issued, or at any 
time afterwards, the plaintiff, or a defendant when he sets 
up an affirmative cause of action in his answer and demands 
substantive relief, at the time of filing his answer, or at any 
time afterwards, if the same be intended to affect real estate, 
may file with the cleric of each county in which the property 
is situated, a notice of the pendency of the action, contain- 
ing the names of the parties, the object of the action, and 
the description of the property in that county affected there- 
by; and if the action be for the foreclosure of a mortgage, 
such notiee must be filed twenty days before judgment, and 
must contain the date of the mortgage, the parties thereto, 
and the time and place of recording the same. From the 
time of filing only shall the pendency of the action be con- 
structive notice to a purchaser or incumbrancer of the pro- 
perty affected thereby; and every person whose conveyance 
or incumbrance is subsequently executed or subsequently 
recorded, shall be deemed a subsequent purchaser or incum- 
brancer, and shall be bound by all proceedings taken after 



CIVIL PROCEDURE. 37 

the filing of such notice, to the same extent as if he were 
made a party to the action. For the purposes of this section, 
an action shall be deemed to be pending from the time of 
filing such notice ; provided, however,, that such notice shall 
be of no avail unless it shall be followed by the first publica- 
tion of the summons on an order therefor, or by the personal 
service thereof on a defendant within sixty days after such 
tiling. And the court in which the said action was com- 
menced may, in its discretion, at any time after the action 
.shall be settled, discontinued, or abated, as is provided in 
section number sixty-four, on application of any person 
aggrieved, and on good cause shown, and on such notice as 
shall be directed or approved by the court, order the notice 
authorized by this section to be canceled of record by the 
clerk of any county in whose office the same may have been 
filed or recorded ; and such cancellation shall be made by an 
indorsement to that effect on the margin of the record, which 
shall refer to the order, and for which the clerk shall be 
entitled to a fee of twenty-five cents. 



TITLE VIII. 

OP THE PLEADINGS IN CIVIL . ACTIONS.- 



Chapter 


I. Complaint. 


(c 


II. Demurrer. 


<< 


III. Answer. 


« 


IV. Reply. 


a 


V. Duty and power of Clerk of the Superior Court in relations to 




the pleadings, and in collateral matters. 


a 


VI. General Rules of pleading. 


t< 


VII. Mistakes in pleading and amendments. 


«< 


VIII. Of the qualification and general duties of Clerks of the Superior 




Courts. 



CHAPTER I. 

THE COMPLAINT. 

^91.— Forms of pleading. 

All the forms of pleading heretofore existing are abolished ; 
and hereafter, the forms of pleading in civil actions in courts 



38 THE CODE OP 

of record, and the rules by -which the sufficiency of the 
pleadings is to be determined, are those prescribed by this 
Code. 

§92— Complaint. 

The first pleading on the part of the plaintiff is the com- 
plaint. 

§93. — Complaint, what to contain. 

The complaint shall contain ; 

1. The title of the cause, specifying the name of the court 
in which the action is brought, the name of the county in 
•which the trial is required to be had, and the names of tha 
parties to the action plaintiff and defendant 
. 2. A plain and concise statement of the facts constituting 
acause of action, without unnecessary repetition; and each 
material allegation shall be distinctly numbered. 

3. A demand of the relief to which the plaintiff supposes 
himself entitled. If the recovery of money be demanded, 
the amount thereof must be stated. 



CHAPTER II. 



THE DEMURRER. 



§94.— Defendant to demnr or answer. 

The only pleading on the part of the defendant is either 
a demurrer or an answer. It must be filed in the office of 
the clerk of the court before which the defendant is sum- 
moned to appear, together with a copy thereof for the 
plaintiff, within ten days after the time limited for the 
appearance of the defendant : a copy thereof must be served 
on the attorney of the plaintiff if he shall have named one 
in the county town, in lieu of filing one for him in the 
clerk's office or on the plaintiff personally if he shall have 
complied with the provisions of section eighty. If the 



CIVIL PROCEDURE. 39 

plaintiff shall have failed to file his complaint within the 
time limited for that purpose, the defendant may move for 
judgment of nonsuit. 

$95. — When defendant may demur. 

The defendant may demur to the complaint when it shall 
appear upon the face thereof, either ; 

1. That the court has no jurisdiction of the person of the 
defendant, or the subject of the action ; or 

2. That the plaintiff has not legal capacity to sue ; or 

3. That there is another action pending between the same 
parties for the same cause ; or 

4. That there is a defect of parties plaintiff or defen- 
dant; or 

5. That several causes of action have been improperly 
united; or 

6. That the complaint does not state facts sufficient to 
constitute a cause of action. 

$96.— Demnrrer mnst specify grounds of objection. 

The demurrer shall distinctly specify the grounds of 
objection to the complaint. Unless it does so, it may be 
disregarded. It may be taken to the whole complaint, or to 
any of the alleged causes of action stated therein. 

§97.— How to proceed if complaint be amended. 

If the complaint be amended a copy thereof must be 
served on the defendant in the manner provided in section 
eighty, for the' service of pleadings and notices after appear- 
ance, within twenty days after the leave to amend. 

§9&. — Objection not appearing on eomplaiut. 

When any of the matters enumerated in section ninety- 
four, do not appear upon the face of the complaint, the 
objection may be taken by answer. 

§99.— Objection, when deemed waived. 

If no such objection be taken either by demurrer or 
answer, the defendant shall be deemed to have waived the 



40 THE CODE OF 

same, excepting only the objection. to the jurisdiction of the 
court, and the objection that the complaint does not state 
facts sufficient to constitute a cause of action. 



CHAPTER III. 

THE ANSWER. 

§100. — Answer, what to contain. 

The answer of the defendant must contain : 

1. A general or specific denial of each material allegation 
of the complaint controverted by the defendant, or of any 
knowledge or information thereof sufficient to form a belief; 

2. A statement of any new matter constituting a defence 
or counter-claim, in ordinary and concise language, without 
repetition. 

§101 .— Connter-clnini. 

The counter-claim mentioned in the last section, must be 
one existing in favor of a defendant, and against a plaintiff, 
between whom a several judgment might be had in the 
action, and arising out of one of the following causes of 
action : 

1. A cause of action arising out of the contract or trans- 
action set forth in the complaint as the foundation of the 
plaintiff's claim, or connected with the subject of the action ; 

2. In an action arising on contract, any other cause of 
action arising also on contract, and existing at the com- 
mencement of the action. 

§102.— Several Dcfcuccs. 

The defendant may set forth by answer as many defences 
and counter-claims as he may have, whether they be such as 
have been heretofore denominated legal, or equitable or both. 
They must each be separately stated and numbered, and 
refer to the cause of action which they are intended to 
answer, in such manner that ' they may be intelligibly dis- 
tinguished. 



CIVIL PROCEDURE. 41 

§103. — Demurrer and answer* 

The defendant may demur to one or more of several causes 
of action stated in the complaint, and answer to the residue. 

$101. — Sham and irrelevant defences. 

Sham and irrelevant answers and defences may be stricken 
out on motion, and upon such terms as the Court may in its 
•discretion impose. 



CHAPTER IV. 

THE REPLY 

^105.— Reply, — Demurrer to answer. 

When the answer contains new matter constituting a 
counter-claim, the plaintiff may within twenty days, reply to 
such new matter, denying generally or specifically each 
allegation controverted by him, or any knowledge or infor- 
mation thereof sufficient to form a belief; and he may allege, 
in ordinary and concise language, without repitirion, any 
new matter not inconsistent with the complaint, constitu- 
ting a defence to such new matter in the answer; and the 
plaintiff may in all cases demur to an answer containing new 
matter, where upon its face it does not constitute a counter- 
claim or defence ; and the plaintiff may demur to one or 
more of such defences or counter-claims and. reply to the 
residue of the counter-claims. And in other cases, when an 
answer contains new matter constituting a defence by way 
of avoidance, the Court may,- in its discretion, on the defen- 
dant's motion, require a reply to such new matter; and in 
that case, the reply shall be subject to the same rules as a 
reply to a counter-claim. 

<;106. — Motion for judgment on answer. 

If the answer contain a statement of new matter constitu- 
ting a counter-claim, and the plaintiff fail to reply or demur 
thereto within twenty days after the filing oi service of such 



42 THE CODE OF 

answer, the defendant may move for such judgment as he is 
entitled to upon such statement; and if the case require it, 
an order for an inquiry of damages by a jury may be made. 

§107. — Demurrer to reply. 

If a reply of the plaintiff to any defence set up by the* 
answer of the defendant be insufficient, the defendant may 
demur thereto, and shall state the grounds thereof. 



CHAPTER V. 

DUTIES AND POWERS OF THE CLERK OP THE SUPERIOR COURT IIT 
RELATION TO THE PLEADINGS, AND IN COLLATERAL MATTERS. 

$108.— Jurisdiction of Clerk on pleadings, &c. 

The Clerk of the Superior Court shall have jurisdiction to 
hear and decide on all questions of practice and procedure,, 
arising in actions brought to this Court, and on all other 
matters whereof jurisdiction is hereby given to the Superior 
Court, unless the Judge of said Court, or the Court at a 
regular term thereof be expressly referred to. 

(>109.— Either party may appeal. 

Any party may appeal from any decision of the Clerk to 
the Judge of the Court, without bond. 

$110. — Duty of the Clerk on appeal prayed. 

On such appeal being prayed, the Clerk, within three 
days thereafter, shall prepare a statement of the facts of the 
case, of his decision, and of the appeal, and shall sign the 
same; he shall, within the time aforesaid, exhibit such state- 
ment to the parties or their attorneys on request; if such- 
statement is satisfactory, the parties or their attorneys shall 
sign the same; if either party object to the statement as 
partial or erroneous, he may put his objections in writing, 



CIVIL PROCEDURE. 4& 

and the Clerk shall attach such writing to his statement, and 
within two days thereafter he shall send such statement, 
together with the objections, and copies of all necessary- 
papers, by mail or otherwise if necessary, to the Judge for his 
decision. 

§111.— Issues of Law seat to Jndge. 

When any issue of law shall be joined on the pleadings 
before the Clerk, he shall within ten days thereafter, send 
by mail, or otherwise, if necesary, to the Judge of the Court, 
a copy of the record, for hearing and decision by him. 

§112.— Party to be heard before Judge* 

The attorney of either party may endorse on the statement 
of any appeal, or on the copy of the record of any issue sent 
to the Judge, a request to be heard before him on such 
matter. 

§113.— Duty of Judge ou appeal. 

It shall be the duty of the Judge on receiving a state- 
ment of appeal from the clerk, or the copy of the record of 
an issue of law, to decide the questions presented as early 
as may be. But if he shall have been informed in writing, 
by the attorney of either party, that he desires to be heard 
on the questions, the Judge shall fix a time and place for 
such hearing, and give the attorneys of both parties reason- 
able notice thereof. He shall transmit his decision in writ- 
ing, endorsed on or attached to the record, to the clerk of 
the Court, who shall immediately acknowledge the receipt 
thereof, and within three days after such receipt, notify the 
attorneys of the parties of the decision, and on request and 
the payment of his legal fees, give them a copy thereof; 
and the parties receiving such notice, may proceed there- 
after according to law. 

§114. — Judge to keep a docket. 

The judge shall keep a docket, in which shall be entered 
the title of every case brought in any manner before him out 



44 • THE CODE OF 

of term, every motion made therein before him, and a copy 
of every order and judgment rendered by him ; and in case 
the original of any order or judgment of such Judge, shall 
be lost or destroyed, a copy from such docket, certified by 
the Judge, shall be as evidence of such order or judgment 
in place of the original, and with the same effect for all 
purposes. 

$115.— Judgment on matter of fact final; on matter of law, maybe ap- 
pealed from. 

The said judgment on issues of fact, shall be final ; any 
party within ten days after notice of such judgment, may 
pray an appeal to the Supreme Court of the State from such 
judgment, upon any matter of law or legal inference therein, 
under the regulations provided for appeals in other cases. 
But execution shall not be suspended until the undertakings 
required by the provisions of Title XIII of this Code, 
entitled " Of Appeals in Civil Actions" shall have been given 
as required. 



CHAPTER VI. 



GENERAL RULES ON PLEADING. 



$116. — Pleadings to be subscribed and verified. 

Every pleading in a court of record, must be subscribed 
by the party or his attorney; and when any pleading is veri- 
fied, every subsequent pleading, except a demurrer, must be 
verified also. 

gll7. — Pleadings, how verified. 

The verification must be to the effect that the same is true 
to the knowledge of the person making it, except as to those 
matters stated on information and belief, and as to those 
matters he believes it to be true ; and must be by affidavit of 
the party, or if there be several parties united in interest, 
and pleading together, by one at least of such parties 



CIVIL PROCEDURE. 45 

acquainted with the facts, if such party be within the coun- 
ty where the attorney resides, and capable of making the 
affidavit. The affidavit may also be made by the agent or 
attorney, if the action or defence be founded upon a written 
instrument for the payment of money only, and such instru- 
ment be in the possession of the agent or attorney, or if all 
the material allegations of the pleading be within the per- 
sonal knowledge of the agent or attorney. When the plead- 
ing is verified by any other person than the party, he shall 
set forth in the affidavit his knowledge, or the grounds of 
his belief on the subject, and the reasons why it is not made 
by the party. When a corporation is a party, the verifica- 
tion may be made by any officer thereof; and when the 
State, or any officer thereof in its behalf, is a party, the veri- 
fication may be made by any person acquainted with the 
facts. The verification may be omitted when an admission 
of the truth of the allegation might subject the party to 
prosecution for felony. And no pleading can be used in a 
criminal prosecution against the' party, as proof of a fact 
admitted or alleged in such pleading. 

£118.— Items of account— particulars, to be furnished when. 

It shall not be necessary for a party to set forth in a plead- 
ing the items of an account therein alleged; but he shall 
deliver to the adverse party, within ten days after a demand 
thereof in writing, a copy of the account, which if the plead- 
ing is verified, must be verified by his own oath, or that of 
his agent or attorney, if within the personal knowledge of 
such agent or attorney, to the effect that he believes it to be 
true, or be precluded from giving evidence thereof. The 
court or the Judge thereof, may order a further account 
when the one delivered is defective; and the court may in 
all cases, order r a bill of particulars of the claim of either 
party to be furnished. 

<)I19. — Pleadings how Construed. 

In the construction of a pleading for the purpose of deter- 
mining its effect, ^allegations shall be liberally construed, 
with a view of substantial justice between the parties. 



46 THE CODE OF 

$120.— Irrelevant or redundant— Indefinite or uncertain. 

If irrelevant or redundant matter be inserted in a plead- 
ing, it may be stricken out, on motion of any person aggriev- 
ed thereby. And \vhen the allegations of a pleading are so 
indefinite or uncertain that the precise nature of the charge 
or defence is not apparent, the court may require the plead- 
ing to be made definite and certain by amendment. 

§121.— Judgments how to be pleaded. 

In pleading a judgment or other determination of a court 
or officer of special jurisdiction, it shall not be necessary to 
state the facts conferring jurisdiction, but such judgment or 
determination may be stated to have been duly given or 
made. If such allegation be controverted, the party plead- 
ing shall be bound to establish, on the trial, the facts con- 
ferring jurisdiction. 

$122.— Conditions precedent how to be pleaded — Instrument for payment of 
money only. 

In pleading the performance of conditions precedent in a 
contract, it shall not be necessary to state the facts showing 
such performance ; but it may be stated generally that the 
party duly performed all the conditions on his part; and if 
such allegation be controverted, the party pleading shall be 
bound to establish, on the trial, the facts showing such per- 
formance. In an action or defence founded upon an instru- 
ment for the payment of money only, it shall be sufficient 
for the party to give a copy of the instrument, and to state 
that there is due to him thereon, from the adverse party, a 
specified sum which he claims. 

§123.— Private statutes, how to be pleaded. 

In pleading a private statute or a right derived therefrom, 
it shall be sufficient to refer to such statute, by its title and 
the day of its i-atification, and the court shall thereupon 
take judicial notice thereof. 



CIVIL PROCEDURE. 47 

§124. — Libel and Slander, how stated in complaint. 

In an action for libel or slander, it shall not be necessary 
to state in the complaint any extrinsic facts, for the purpose 
-of showing the application to the plaintiff, of the defama- 
tory matter out of which the cause of action arose: but it 
shall be sufficient to state generally that the same was pub- 
lished or spoken concerning the plaintiff; and if such alle- 
gation be controverted, the plaintiff shall be bound to estab- 
lish, on trial, that it was so published or spoken. 

*$1 25. —Answer in sueh eases. 

In the actions mentioned in the last section, the defendant 
may in his answer, allege both the truth of the matter 
charged as defamatory, and any mitigating circumstances to 
reduce the amount of damages ; and whether he prove the 
justification or not, he may give in evidence the mitigating 
circumstances. 

§126.— What causes of action may be joined in the same complaint. 

The plaintiff may unite in the same complaint several 
causes of action, whether they be such as have been hereto- 
fore denominated legal, or equitable, or both, where they all 
arise out of, 

1. The same transaction ; or transactions connected with 
the same subject of action ; 

2. Contract express or implied; or 

3. Injuries with or without force, to person and property 
or either; or 

4. Injuries to character; or 

5. Claims to recover real property, with or without dam- 
ages for the withholding thereof; and the rents and profits 
of the same ; or 

G. Claims to recover personal property, with or without 
damages for the withholding thereof; or 

7. Claims against a trustee, by virtue of a contract, or by 
operation of law. 



48 THE CODE OF 

But the causes of action so united must all belong to* one 
of these classes, and except in actions for the foreclosure of 
mortgages, must affect all the parties to the action, and not 
require different places of trial, and must be separately 
stated. In actions to foreclose mortgages, the court shall 
have power to adjudge and direct the payment by the mort- 
gagor of any residue of the mortgage debt that may remain 
unsatisfied after a sale of the mortgaged premises, in cases 
in which the mortgagor shall be personally liable for the 
debt secured by such mortgage ; and if the mortgage debt 
be secured by the convenant or obligation of any person 
other than the mortgagor, the plaintiff may make such per- 
son a party to the action, and the court may adjudge pay- 
ment of the residue of such debt remaining unsatisfied after 
a sale of the mortgaged premises, against such other person,. 
and may enforce such judgment as in other cases. 

\)127. — Allegation not denied ; when to be deemed trne. 

Every material allegation of the complaint not controvert- 
ed by the answer, as prescribed in section ninety-seven, and 
every material allegation of new matter in the answer, con- 
stituting a counter claim, not controverted by the reply, as 
prescribed in section one hundred and one, shall, for the pur- 
poses of the action, be taken as true. But the allegation "of 
new matter in the answer, not relating to a counter-claim, 
or of new matter in reply, is to be deemed controverted by 
the adverse party as upon a direct denial or avoidance, as 
the case may require. 



CHAPTER YII. 

MISTAKES IN PLEADINGS AND AMENDMENTS. 

§5128. — Materia! variance. 

No variance between the allegation in a pleading and the 
proof shall be deemed material, unless it have actually 



CIVIL PROCEDURE. 49 

• 

misled the adverse party, to his prejudice, in maintaining 
his action upon the merits. Whenever it shall be alleged 
that a party has been so misled, that fact shall be proved to 
the satisfaction of the court, and in what respect he has been 
misled; and thereupon the Judge may order the pleading to 
be amended upon such terms as shall be just. 

, 1 2<t. — Immaterial variance. 

Where the variance is not material as provided in the last 
section, the Judge may direct the fact to be found according 
to the evidence, or may order an immediate amendment 
without costs. 

v>130.— A failure of proof, when. 

Where, however, the allegation of the cause o± action or 
defence to which the proof is directed is unproved, not in 
some particular or particulars only, but in its entire scope 
and meaning, it shall not be deemed a case of variance 
within the last sections, but a failure of proof. 

§131. — Amendments of eourse after allowance of demurrer. 

Any pleading may be once amended by the party of 
course, without costs and without prejudice to the proceed- 
ings already had, at any time before the period for answer- 
ing it expires : or it can be so amended at any time within 
twenty days after the service of the answer or demurrer to 
such pleading, unless it be made to appear to the court that 
it was done for the purpose of delay, and the plaintiff or 
defendant will thereby lose the benefit of a term for which 
the cause is or may be docketed for trial; and if it appear 
to the court or Judge that such amendment was made for 
such purpose, the same may be stricken out, and such terms 
imposed as to the court or Judge may seem just. In such 
case a copy of the amended pleading must be served on the 
adverse party. After the decision of a demurrer, the Judge 
may, in his discretion, if it appear that the demurrer was 
interposed in good faith, allow the party to plead over upon 

such terms as may be just. It the demurrer be allowed for 

4 



50 THE CODE OF 

• 

the reason that several causes of action have been improperly- 
united, the Judge may, in his discretion, and upon such terms 
as may be just, order the action to be divided into as many 
actions as may be necessary to the proper determination of 
the causes of action therein mentioned. 

§132. — Amendments by order. 

The court may, before, and the Judge may, after judg- 
ment, in furtherance of justice, and on such terms as may 
be proper, amend any pleading process or proceeding, by- 
adding or striking out the name of any party ; or by cor- 
recting a mistake in the name of a party, or a mistake in 
any other respect; or by inserting other allegations material 
to the case; or when the amendment does not change sub- 
stantially the claim or defence, by conforming the pleading 
or proceeding to the facts proved. 

<)133. — Relief ill case of a mistake. 

The Judge may likewise in his discretion, and upon such 
terms as may be just, allow an answer or reply to be made, 
or other act to be done, after the time limited by this act, or 
by an order enlarge such time ; and may also in his discre- 
tion, and upon such terms as may be just, at any time within 
one year after notice thereof, relieve a party from a judg- 
ment order or other proceeding taken against him through 
his mistake, inadvertence, surprise or excusable neglect, and 
may supply an omission in any proceeding ; and whenever 
any proceeding token by a party tails to conform in any 
respect to the provisions of this Code, the Judge, may in 
like manner and upon like terms, permit an amendment oi 
such proceeding, so as to make it conformable thereto. 

^134. — When plain till' ignorant of name of defend ant. 

When the plaintiff shall be ignorant of the name of a 
defendant, such defendant may be designated in any plead- 
ing cr proceeding by name; and when his true name shall 
be discovered, the pleading or proceeding may be amended 
accordingly. 



CIVIL PROCEDURE. 51 

<jl 35.— Errors or defects not substantial to be disregarded. 

The Court and the Judge thereof, shall in every stage of 
action, disregard any error of defect in the pleadings or 
proceedings, which shall not affect the substantial rights of 
the adverse party; and no judgment shall be reversed or 
affected by reason of such error or defect. 

<>136. — Supplemental pleadings. 

The plaintiff and defendant respectively may be allowed 
on motion to make a supplemental complaint, answer or 
reply, alleging facts material to the case, occurring after the 
former complaint, answer or reply, or of which the party 
was ignorant when his former pleading was made, and either 
party may, by leave of the Court in any pending or future 
action, set up by a supplemental pleading, the judgment or 
decree of any Court of competent jurisdiction, rendered since 
the commencement of such action, determining the matter 
in controversy in said action or any part thereof, and if said 
judgment be set up by the plaintiff, the same shall be with- 
out prejudice to any provisional remedy theretofore issued or 
other proceedings had, in said action, on his behalf. 



CHAPTER VIII. 

OP THE QUALIFICATION AND GENERAL DUTIES OF CLERKS OF THE. 
SUPERIOR COURTS. 

<jI37 — Bond of Clerk. 

At the first meeting of the County Commissioners of each; 
county, after the election or appointment of any clerk of a 
Superior Court, it shall be the duty of the Clerk to deliver 
to such Commissioners, a bond with sufficient sureties, to be- 
approved by them, in a penalty of ten thousand dollars, 
payable to the State of North Carolina, and with a condition; 
to be void, if he shall account for, and pay over, accoi'ding to. 
law, all monies and effects which have come or may come- 



52 'THE CODE OF 

into his hands, by virtue or color of his office, and shall dil- 
igently preserve and take care of all books, records, papers 
and property which have come or may come into his posses- 
sion, by virtue or color of his office, and shall in all things 
faithfully perform the duties of his office as they are, or there- 
after shall be prescribed by law. Each surety shall take and 
subscribe an oath, before the Register of Deeds, that he is worth 
a certain sum (which shall not be less than one thousand 
dollars) over and above all his debts and liabilities and his 
homestead exemption, and the sums thus sworn to, shall not 
be less in the aggregate than the penalty of the bond 

£138.— Bond how approved, &c. 

The approval of said bond, by the Commissioners or a 
majority of them, shall be recorded by their clerk. Any 
Commissioner approving a bond which he knows or believes 
to be insufficient, shall be personally liable as if he were a 
surety thereto. The said bond shall be acknowledged by 
the paities thereto, or proved by a subscribing witness, 
before the Clerk of said Commissioners, or their presiding 
officer, registered in the Register's office in a separate book 
to be kept by him for the registration of official bonds; and 
the original, with the approval thereof endorsed, deposited 
with the Register for safe keeping. The like remedies shall 
be had upon said bond, as are, or may be given by law on 
official bonds. 

()l 3P.— Qualification of Clerks. 

The clerks of the Superior Court before entering on the 
duties of their office, shall take and subscribe before some 
officer authorized by law to administer an oath, the oaths 
prescribed by law, and file such oath with the Register of 
Deeds for the county. 

<>U0.— Failnie to gre bond, etc. 

In case any clerk shall fail to give bond and qualify as 
above directed, the presiding officer of the County Commis- 
sioners of his county, shall immediately inform the Judge of 



CIVIL PROCEDURE. 53 

the Judicial District thereof, who shall thereupon declare the 
office vacant and fill the same, and the appointee shall give 
bond and qualify as above directed. 

§141. — Office, where to be kept — When to be opeD. 

He shall have an office, in the Court house or other place 
provided by the County Commissioners, in the county town 
of his county. He shall give due attendance, in person or 
by deputy at his office daily (Sunday's and holidays, 
excepted) from nine o'clock A. M., to three o'clock P. M., 
and longer when necessary for the despatch of business. 

()Ui. — To receive official papers, &c. 

Immediately after he shall have given bond and qualified 
as aforesaid, he shall receive from the late Clerks of the 
County and Superior Courts and Clerk and Master of the 
Court of Equity, all the records, books, papers, monies and 
property of their respective offices, and give receipts for the 
same, and if any clerk, or clerk and master, shall refuse, or 
fail within a reasonable time after demand to deliver such 
records, books, papers and property, they shall be respec- 
tively liable on their official bonds for the value thereof, and 
be held guilty of a misdemeanor. 

<>l 13. — To keep records, &c* 

He shall be furnished with the requisite stationery and 
furniture, for official use by the County Commissioners, 
except as hereinafter provided. He shall keep in bound 
volumes a complete and faithful record of all his official acts, 
and give copies thereof to all persons desiring them, on pay- 
ment of the legal fees. 

<jl44.— Books to be kept by Clerks. 

Each clerk shall keep the following books : 
1. A docket of all writs, summons or other original pro- 
cesses issued b3' him, or returned to his office; this docket shall 
contain a brief note of every proceeding whatever in each 
action, up to the final judgment inclusive. 



54 THE CODE OF 

2. A Judgment docket in which the substance of the 
judgment shall be recorded, and every proceeding subsequent 
thereto, noted. 

3. A docket of all issues of fact joined upon the pleadings, 
and of all other matters for hearing before the Judge at a 
regular term of the court, a copy of which shall be furnished 
to the Judge at the commencement of each term. 

4. An alphabetical index according to the names of the 
plaintiffs, of all final judgments in civil actions rendered in 
the court, with the dates and numbers thereof, and also of 
all final judgments rendered in other courts, and authorized 
by law, to be entered on his Judgment Docket. 

5. A docket of all criminal actions, containing a note of 
every proceeding in each. 

§145.— Books to be famished by Secretary of State. 

The books specified in the above section, shall be supplied 
to the clerks of the several counties by the Secretary of 
State, at the expense of the State, and the Secretary shall, 
;as soon as possible, transmit an account thereof to the pre- 
siding officer of the County Commissioners, in order that 
the price may be levied in the county taxes ; and also to 
the Auditor of Public Accounts, who shall add the same to 
the taxes of the respective counties and receive and account 
for it, as for other taxes. The commissioners of any county 
failing to cause such sum. to be levied, with the other county 
taxes, shall be guilty of a misdemeanor. 

§14tii — Papers in each action to be kept separate, and filed together. 

• They shall keep the papers in each action, in a separate 
roll or bundle, and at its termination, attach them together, 
properly label, and file them in the order of the date of the 
final judgment. 

§147. — Solicitor to examine records. 

At every regular term of the Superior Court, the Solicitor 
for the judicial district shall inspect the office of the clerk, 
and report to the court in writing. If any clerk, after being 



CIVIL PROCEDURE. 55 

furnished with the necessary books, shall fail to keep them 
up, as required by law, he shall be guilty of a misdemeanor, 
and the solicitor shall cause him to be prosecuted for the 
same. If any solicitor shall fail or neglect to perform the 
duty hereby imposed on him, he shall be liable to a penalty 
of five hundred dollars to any person who shall sue lor the 
same. 



TITLE IX. 



OP THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. 

CHAPTER I. Arrest and Bail. 

" II. Claim and dellyery of personal property. 

" III. Injunction. 

« IT. Attachment. 

«< V. Provisional remedies. 

CHAPTER I. 

ARREST AND BAIL. 

§148.— No person to be arrested exeept as prescribed. 

No person shall be arrested in a civil action, except as 
prescribed by this act; but this provision shall not apply to 
proceedings for contempt. 

§149.— In what cases. 

The defendant may be arrested, as hereinafter prescribed, 
in the following cases : 

1. In an action for the recovery of damages, on a cause of 
action not arising out of contract, where the defendant is 
not a resident of the State, or is about to remove therefrom, 
or where the action is for an injury to person or character, or 
for injuring, or for wrongfully taking, detaining or convert- 
ing property. 



56 THE CODE OF 

2. In an action for a fine on penalty, or on a promise to 
marry, or for money received, or for property embezzled or 
fraudulently misapplied, by a public officer, or by an attor- 
ney, solicitor or counsellor, or by an officer or agent of a 
corporation or banking association, in the course of his- 
employment as such, or by any factor, agent, broker or other 
person in a fiduciary capacity, or for any misconduct or 
neglect in office, or in a professional employment. 

3. In an action to recover the possession of personal pro- 
perty unjustly detained, where the property, or any part 
thereof, has been concealed, removed or disposed of, so that 
it cannot be found or taken by the sheriff, and with the 
intent that it should not be so found or taken, or with the 
intent to deprive the plaintiff of the benefit thereof. 

4. When the defendant has been guilty of a fraud in con- 
tracting the debt, or incurring the obligation for which the 
action is brought, or in concealing or disposing of the pro- 
perty for the taking, detention or conversion of which, the 
action is brought, or when the action is brought to recover 
damages for fraud or deceit. 

5. When the defendant has removed or disposed of his 
property, or is about to do so, with intent to defraud hi& 
creditors. 

But no female shall be arrested in any action, except for a 
wilful injury to person, character or property. 

§150. — Order for arrest, by whom made. 

Ah order for the arrest of the defendant must be obtained 
from the Court in which the action is brought, or from a 
Judge thereof. 

§151.— Affidavit to obtain order. To what actions this chapter applies. 

The order may be made where it shall appear to the Court, 
or Judge thereof, by the affidavit of the plaintiff, or of any other 
person, that a sufficient cause of action exists, and that the 
case is one of those mentioned in section one . hundred and 
forty-nine. 



CIVIL PROCEDURE. 57 

The provisions of this chapter shall apply to all actions 
included within the provisions of section one hundred and 
forty-nine, which shall be commenced after the ratification 
of this Act. 



§152. — Set arity by plaintiff before order of arrest. 

Before making the order, the Judge shall require a writ- 
ten undertaking on the part of the plaintiff, with sureties, 
to the effect that if the defendant recover judgment, the 
plaintiff will pay all damages which he may sustain by rea- 
son of the arrest, not exceeding the sum specified in the 
undertaking, which shall be at least one hundred dollars. 

§153. — Order, when made, aud its form — Time to answer or to move to vacate. 

The order may be made to accompany the summons, or 
issue at any time afterwards, before judgment. It shall 
require the sheriff of the county where the defendant may 
be found, forthwith to arrest him and hold him to bail in a 
specified sum, and to return the order, at a place and time 
therein mentioned, to the clerk of the court in which the 
action is brought, and notice of such return shall be served 
on the plaintiff or his attorney as prescribed in section 
eighty. 

But said order of arrest shall be of no avail, and shall be , 
vacated or set aside on motion, unless the same is served 
upon the defendant, as provided by law, before the docket- 
ing of any judgment in the action; and the defendant shall 
have twenty days, after the service of the order of arrest, in 
which to answer the complaint in the action, and to move 
to vacate the order of arrest, or to reduce the amount of 
bail. 

§154. — Affidavit and order to be delivered to sheriff, and copy to deTcndant. 

The affidavit and order of arrest shall be delivered to the 
sheriff, who, upon arresting the defendant, shall deliver to 
him a copy thereof. 



58 THE CODE OF 

§155. — Arrest, how made. 

The sheriff shall execute the order by arresting the defen- 
dant, and keeping him in custody until discharged by law; 
and may call the power of the county to his aid in the exe- 
cution of the arrest, as in case of process. 

§156. — Defendant to be discharged on bail or deposit. 

The defendant, at any time before execution, shall be 
discharged from the arrest, either upon giving bail, or upon 
depositing the amount mentioned in the order of arrest, as 
provided in this chapter. 

§157. — Bali, how given. 

The defendant may give bail, by causing a written under- 
taking to be executed by two or more sufficient bail, stating 
their places of residence and occupations, to the effect that 
the defendant shall at all times render himself amenable to 
the process of the court, during the pendency of the action, 
and to such as may be issued to enforce the judgment there- 
in, or if he be arrested for the cause mentioned in the third 
sub- division of section one hundred and forty -nine, an 
undertaking to the same effect as that provided by section 
one hundred and eighty-one. 

§158.— Surrender of defendant. 

At any time before final judgment against them, the bail 
may surrender the defendant in their exoneration, or he may 
surrender himself to the sheriff of the county where he was 
arrested, in the following manner : 

1. A certified copy of the undertaking of the bail shall 
be delivered to the sheriff, who shall detain the defendant 
in his custody thereon, as upon an order of arrest, and 
shall, by a certificate in writing, acknowledge the sur- 
render ; 

2. Upon the production of a copy of the undertaking and 
sheriff's certificate, the Court, or a Judge thereof may, upon 
a notice to the plaintiff of eight days, with a copy of the 
certificate, oider that the bail be exonerated; and on filing 



CIVIL PROCEDURE. 5i) 

the order and the papers used on said application, they shall 
be exonerated accordingly. But this section shall not apply 
to an arrest for cause mentioned in subdivision three of sec- 
tion one hundred and forty-nine, so as to discharge the bail 
from an undertaking given to the effect provided by section 
one hundred and eighty-one. 

§159. — Sarrender of defendant. 

For the purpose of surrendering the defendant, the bail, 
at any time or place, before they are finally charged, may 
themselves arrest him, or by a written authority, indorsed 
on a certified copy of the undertaking, may empower any 
person of suitable age and discretion to do so. 

? 160.— Bail, bow proceeded against. 

In case of failure to comply with the undertaking, the 
bail may be proceeded against, by action only. 

?' 161. — Ball how exon erated. 

The bail may be exonerated, either by the death of the 
defendant, or his imprisonment in a State prison, or by his 
legal discharge from the obligation to render himself amen- 
able to the process, or by his surrender to the sheriff of the 
ccunty where he was arrested, in execution thereof, at any 
time before final judgment against the bail. 

i\(ii. — Delivery of undertaking to plaintiff, and its acceptance or rejection by 
him. 

Within the time limited for that purpose, the sheriff shall 
deliver the order of arrest to the clerk of the court in which 
the suit is brought, with his return indorsed, and a certified 
copy of the undertaking of the bail, and notify the plaintiff 
or his attorney thereof. The plaintiff, within ten days there- 
after, may serve upon the sheriff a notice that he does not 
accept the bail, or he shall ; be deemed to have accepted it, 
and the sheriff shall be exonerated from liability. 



60 THE CODE OF 

§163.— Notice of justification— New bail. 

On the receipt of such notice, the sheriff or defendant 
may, within ten days thereafter, give to the plaintiff, or his 
attorney, notice of the justification of the same or other bail 
(specifying the places of residence and occupation of the 
latter) before the court, or the Judge thereof, at a specified 
time and place; the time to be not less than five nor more 
than ten days thereafter. In case other bail be given, there 
shall be a new undertaking, in the form prescribed in section 
one hundred and fifty-seven. 

§164 — Qualification of bail. 

The qualifications of bail must be as follows : 

1. Each of them must be a resident and householder or 
freeholder within the State. 

2. They must each be worth the amount specified in the 
order of arrest, exclusive of property exempt from execu- 
tion ; but the Judge, on justification, may allow more than 
two bail to justify severally in amounts less than that 
expressed in the order, if the whole justification be equiva- 
lent to that of two sufficient bail. 

§165.— Jnstification of bail. 

For the purpose of justification, each of the bail shall 
attend before the court or the Judge, or a Justice of the 
Peace, at the time and place mentioned in the notice, and 
may be examined on oath, on the part of the plaintiff, 
touching his sufficiency, in such a manner as the Court, or 
Judge in his discretion, may think proper. The examina- 
tion shall be reduced to writing, and subscribed by the 
bail, if required by the plaintiff 

§166.— Allowance of bail. 

If the Court or Judge find the bail sufficient, he shall 
annex the examination to the undertaking, indorse his 
allowance thereon, and cause them to be filed with the 
clerk; and the sheriff shall thereupon be exonerated from 
liability. 



CIVIL PROCEDURE. Gl 

§167.— Deposit with the sheriff. 

The defendant may, at the time of his arrest, instead of 
giving bail, deposit with the. sheriff the amount mentioned 
in the order. The sheriff shall thereupon give the defen- 
dant a certificate of the deposit, and the defendant shall be 
discharged out of custody. 

§168. — Payment of deposit into eonrt. 

The sheriff shall, within four days after the deposit, pay 
the same into court, and shall take from the officer receiving 
the same, two certificates of such payment, the one of which 
he shall deliver to the plaintiff, and the other to the defen- 
dant. For any default in making such payment, the same 
proceedings may be had on the official bond of the sheriff, to 
collect the sum deposited, as in other cases of delinquency. 

$169.— Substituting bail for deposit*. 

If money be deposited, as provided in the last two sec- 
tions, bail may be given, and justified upon notice, as pre- 
scribed in section one hundred and sixty, any time before 
judgment; and thereupon the Judge shall direct, in the 
order of allowance, that the money deposited be refunded, 
by the sheriff, to the defendant, and it shall be refunded 
accordingly. 

§170. — Deposit, how disposed tff. 

When money shall have been so deposited, if it remain on 
deposit at the time of an order or judgment for the payment 
of money to the plaintiff, the clerk shall, under the direction 
of the Court, apply the same in satisfaction thereof, and 
after satisfying the judgment, shall refund the surplus, if 
any, to the defendant. If the judgment be in favor of the 
defendant, the clerk shall refund to him the whole sum 
deposited and remaining unapplied. 

§171. — Sheriff, when liable as bail. 

If, after being arrested, the defendant escape or be res- 
cued, or bail be not given or justified, or a deposit be not 



62 THE CODE OF 

made instead thereof, the sheriff shall himself be liable as 
bail. But he may discharge himself from such liability, by 
the giving and justification of bail, as provided in sections 
one hundred and sixty-three, one hundred and sixty-four one 
hundred and sixty-five, and one hundred and sixty-six, at any 
time before process against the person of the defendant, to 
enforce an order or judgment in the action. 

§172. — Proceedings on judgment against sheriff. 

If a judgment be recovered against the sheriff, upon his 
liability as bail, and an execution thereon be returned unsat- 
isfied, in whole or in part, the same proceedings may be 
had on the official bond of the sheriff, to collect the deficiency, 
as in other cases of delinquency. 

£173.— Bail liable to sheriff. 

The bail taken upon the arrest, shall, unless they justify, 
or other bail be given or justified, be liable to the sheriff by 
action, for damages which he may* sustain by reason of such 
omission. 

§174. — Vacating order of arrest, or reducing bail. 

A defendant arrested may at any time before judgment,, 
apply, on motion, to vacate the order of arrest, or to reduce 
the amount of bail. 

§175. — Affidavits on motion. 

If the motion be made upon affidavits on the part of the 
defendant, but not otherwise, the plaintiff may oppose the 
same by affidavits, or other proofs, in addition to those oni 
which the order of arrest was made. 



CIVIL PROCEDURE. 63 

CHAPTER II. 

CLAIM AND DELIVERY OF PERSONAL PROPERTY. 

£176. — Delivery of personal property. 

The plaintiff, in an action to recover the possession of per- 
sonal property, may, at the time of issuing the summons, or 
at any time before answer, claim the immediate delivery of 
such property, as provided in this chapter. 

£177.— Affidavits and Its requisites. 

Where a delivery is claimed an affidavit must be made, 
before the clerk of the court in which the action is required 
to be tried, by sections sixty-six, sixty-seven and sixty-eight, 
by the plaintiff, or some one in his behalf, showing : 

1. That the plaintiff is the owner of the property claimed 
(particularly describing it,) or is lawfully entitled to the 
possession thereof, by virtue of a special property therein, 
the facts in respect to which shall be set forth ; 

2. That the property is wrongfully detained by the defen- 
dant; 

3. The alleged cause of the detention thereof, according 
to his best knowledge, information, and belief; 

4. That the same has not been taken for a tax, assessment, 
or fine, pursuant to a statute ; or seized under an execution 
or attachment against the property of the plaintiff; or, if so 
seized, that it is, by statute, exempt from such seizure ; and 

5. The actual value of the property. 

£178.— Requisition to sheriff to take and deliver the property. 

The clerk of the court shall, thereupon, by an indorse- 
ment in writing upon the affidavit, require the sheriff of the 
county where the property claimed may be, to take the same 
from the defendant and deliver it to the plaintiff; provided, 
the plaintiff shall give the undertaking prescribed in the 
next section. 



64' THE CODE OF 

§179 — Security by plaintiff. 

Upon the receipt of the order from the clerk with a writ- 
ten undertaking executed by one or more sufficient sureties, 
approved by the sheriff, to the effect that they are bound in 
double the value of the property, as stated in the affidavit 
for the prosecution of the action, for the return of the pro- 
perty to the defendant, if return thereof be adjudged, and 
for the payment to him of such sum as may, for any cause, 
be recovered against the plaintiff, the sheriff shall forthwith 
take the property described in the affidavit, if it be in the 
possession of the defendant or his agent, and retain it in his 
custody. He shall also, without delay, serve on the defen- 
dant a copy of the affidavit, notice, and undertaking, by 
delivering the same to him personally, if he can be found, 
or to his agent, from whose possession the property is taken; 
or, if neither can be found, by leaving them at the usual 
place of abode of either, with some person of suitable age 
and discretion. 

§180. — Exception to sureties. 

The defendant may, within three days after the service of 
a copy of the affidavit and undertaking, give notice to the 
sheriff personally, or by leaving a copy at his office in the 
county town of the county, or if he have no such office, at 
the office of the clerk of thte court that he excepts to the 
sufficiency of the sureties. If he fail to do so, he shall be 
deemed to have waived all objection to them. When the 
defendant excepts, the sureties shall justify on notice, in like 
manner as upon bail on arrest. And the sheriff shall be 
responsible for the sufficiency of the sureties, until the 
objection to them is either waived as above provided, or 
until they shall justify, or new sureties shall be substituted 
and justify. If the defendant except to the sureties, he 
cannot reclaim the property, as provided in the next section. 

§181.— Defendant when entitled to re-delivery. 

At any time before the delivery of the property to the 
plaintiff, the defendant may, if he do not except to the 



CIVIL PROCEDURE. 65 

sureties of the plaintiff, require the return thereof, upon 
giving to the sheriff a written undertaking', executed by two 
or more sufficient sureties, to the effect that they are bound 
in double the value of the party, as stated in the affidavit of 
the plaintiff, for the delivery thereof to the plaintiff, if such 
delivery be adjudged, and for the payment to him of such 
sum as may, for any cause, be recovered against the defen- 
dant. If a return of the property be not so required, within 
three days after the taking and service of notice to the 
defendant, it shall be delivered to the plaintiff, except as pro- 
vided in section one hundred and eighty-six. 

^182. — Justification of defendant's snreties. 

The defendant's sureties, upon a notice to the plaintiff of 
not less than two nor more than six days, shall justify before 
a Judge or Justice of the Peace, in the same manner as 
upon bail on arrest; upon such justification, the sheriff shall 
deliver the property to the defendant. The sheriff shall be 
responsible for the defendant's sureties, until they justify, or 
until justification is completed or expressly waived, and may 
retain the property until that time ; but if they, or others in 
their place, fail to justify at the time and place appointed, 
he shall deliver the property to the plaintiff. 

§183. — Qualifications and justification of sureties. 

The qualifications of sureties, and their justification, shall 
be as are prescribed by sections one hundred and sixty four 
and one hundred and and sixty-five, in respect to bail upon 
an order of arrest. 

§184.— Property, how taken when concealed in building or iudosure. 

If the property, or any part thereof, be concealed in a 
building or inclosure, the sheriff shall publicly demand its 
delivery. If it be not delivered, he shall cause the building 
or inclosure to be broken open, and take the property into 
his possession; and, if necessary, he may call to his aid the 
power of his county. 
5 



66 THE CODE OF 

§185. — Property, how kept. 

When the sheriff shall have taken property, as in this 
chapter provided, he shall keep it in a secure place, and 
deliver it to the party entitled thereto, upon receiving his 
lawful fees for taking, and his necessary expenses for keep- 
ing the same. 

<jl 86.— Claim of property by third person. 

If the property taken be claimed by any other person than 
the defendant or his agent, and such person shall make affi- 
davit of his title thereto, and right to the possession thereof, 
stating the grounds of such right and title, and serve the same 
upon the sheriff, the sheriff shall not be bound to keep the 
property, or deliver it to the plaintiff, unless the plaintiff, on 
demand of him or his agent, shall indemnify the sheriff 
against such claim, by an undertaking executed by two 
sufficient sureties, accompanied by their affidavits, that they 
are each worth double the value of the property, as specified 
in the affidavit of the plaintiff, and freeholders and house- 
holders of the county. And no claim to such property, by 
any other person than the defendant or his agent, shall be 
valid against the sheriff, unless made as aforesaid; and not- 
withstanding such claim, when so made, he may retain the 
property a reasonable time to demand such indemnity. 

§187.— Notice and affidavit, when aud where to be filed. 

The sheriff shall file the notice and affidavit, with his 
proceedings thereon, with the clerk of the court in which 
the action is pending, within twenty days after taking the 
property mentioned therein. 



CHAPTER III. 

INJUNCTION. 



<>1S8- — Injunction by order. 

The writ of injunction, as a provisional remedy, is 
abolished, and an injunction by order, is substituted there- 



CIVIL PROCEDURE. 67 

for. The order may be made by any Judge of a Superior 
Court, in the cases provided in the next section, and, may 
be enforced as the order of the court. Upon such order it 
shall be issued by the clerk of the court, in which the action 
is required to be tried. 

§189— Injunctions, in what eases. 

[1.] When it shall appear by the complaint that the 
plaintiff is entitled to the relief demanded, and such relief, 
or any part thereof, consists in restraining the commission, 
or continuance, of some act, the commission or continuance 
of which, during the litigation, would produce injury to the 
plaintiff; or [2] when, during the litigation, it shal.l appear 
that the defendant is doing, or threatens, or is about to do, 
or procuring or suffering some act to be done in violation of 
the plaintiff's rights respecting the subject of the action, and 
tending to render the judgment ineffectual, a temporary 
injunction may be granted to restrain such act. [3] And 
where, during the pendency of an action, it shall appear by 
affidavit that the defendant threatens, or is about to remove 
or dispose of his property, with intent to defraud his credi- 
tors, a temporary injunction may be granted to restrain such 
removal or disposition. 

■,190.— At what time it may be granted. Copy of affidavit to be served. 

The injunction may be granted at the time of commen- 
cing the action, or at any time afterwards, before judgment, 
upon its appearing satisfactorily to the Judge, by the affida- 
vit of the plaintiff, or of any other person, that sufficient 
grounds exist therefor. A copy of the affidavit must be 
served with the injunction. 

$191.— Injunction after answer. 

An injunction shall not be allowed after the defendant 
shall have answered, unless upon notice, or upon an order 
to show cause; but in such case the defendant may be 
restrained until the decision of the Judge granting or refus- 
ing the injunction. 



08 THE CODE OF 

£i92. — Security upon injunction. Damages. 

Upon granting an order for an injunction, the Judge shall 
require as a condition precedent to the issuing thereof, that 
the clerk shall take from the plaintiff a written undertaking, 
with sufficient sureties to be justified before, and approved 
by the said clerk or by the Judge, in an amount to be fixed 
by the Judge, to the effect that the plaintiff will pay to the 
party enjoined, such damages, not exceeding an amount to 
be specified, as he may sustain 'by reason of the injunction, 
if the Court shall finally decide that the plaintiff was not 
entitled thereto. The damages may be ascertained by a 
reference, or otherwise,' as the Jtfdge shall direct. 

vjl93 — Order to show cause- Restraint in meantime. 

If the Judge deem it proper that the defendant, or any of 
several defendants, should be heard before granting the 
injunction, an order may be made requiring cause to be 
shown, at a specified time and place, why the injunction 
should not be granted; and the defendant may, in the 
meantime, be restrained. 

v^lM—- Security upon injunction to suspend business of corporation. 

An injunction to suspend the general and ordinary busi- 
ness of a corporation shall not be granted without due notice 
of the application therefor, to the proper officers of the cor- 
poration, except where the State is a party to the proceed- 
ing, unless the plaintiff shall give a written undertaking 
executed by two sufficient sureties, to be approved by the 
Judge, to the effect that the plaintiff will pay all damages, 
not exceeding the sum to be mentioned in the undertaking, 
which such corporation may sustain by reason of the injunc- 
tion, if the Court shall finally decide that the plaintiff was 
not entitled thereto. The damages may be ascertained by 
a reference, or otherwise, as the Court shall direct. 

^195.— Motion to vacate or modify injunction. 

If the injunction be granted by a Judge of the Court, 
without notice, the defendant, at any time before the trial, 



CIVIL PROCEDURE. 69 

may apply, upon notice, to a Judge of the Court in which 
the action is brought, to vacate or modify the same. The 
application may be made upon the complaint and the affi- 
davits on which the injunction was granted, or upon the 
affidavits on the part of the defendant, with or without the 
answer. 

§198 — Affidavits on motion. 

If the apr)lication be made upon affidavits on the part of 
the defendant, but not otherwise, the plaintiff may oppose 
the same by affidavits or other proofs, in addition to those 
on which the injunction was granted. 



CHAPTER IV. 



ATTACHMENT. 



§197.— Property of foreign corporations!, am! of uon-resideat, or absconding, 
or conceded defendants, may be attached. 

In an action arising on contract, for the recovery of monej' 
only, or in an action for the wrongful conversion of per- 
sonal property, against a corporation created by, or under. 
the laws of any other State, government or country, or 
against a defendant who is not a resident of this State, or 
against a defendant who has absconded or concealed him- 
self, or whenever any person or corporation is about to 
remove any of his, or its property, from this State, or has 
assigned, disposed of, or secreted, or is about to assign, 
dispose of, or secrete, any of his, or its, property, with intent 
to defraud creditors, as hereinafter mentioned, the plaintiff 
at the time of issuing the summons, or [at] any time afterwards, 
may have the property of such defendant or corporation 
attached, in the manner hereinafter prescribed, as a security 
for the satisfaction of such judgment as the plaintiff may 
recover; and for the purposes of this seclion, an action shall 



70 THE CODE OF 

Jifi deemed commenced, when the summons is issued; Pro- 
vided however, that personal service of such summons shall 
be made, or .publication thereof commenced within thirty 
days after obtaining a warrant of attachment. 

§198.— Publication to be made 

The plaintiff obtaining a warrant of attachment shall 
within the time above prescribed, cause publication to be 
made, at least once a week for four successive weeks, in 
some newspaper published in the county in which the 
warrant is returnable ; or if there be none such published, 
then in one published within the judicial district, in which 
such county is, or if there be none such published, then in 
any newspaper published in this State. Said publication 
shall state the names of the parties, the amount, and in a 
brief way, the nature of the demand, the time and place to 
which the warrant is returnable, and shall require the 
defendant to appear then and there and answer the com- 
plaint. It the place of residence of the defendant be known, 
the plaintiff shall send to him by mail, a copy of such pub- 
lication ; and the court in which the suit is pending may, 
at any time, order notice to be sent by mail to any place, in 
which the defendant may be supposed to reside or be. 

<il99- — Warrant, by whom granted. 

If the action be not founded on a contract, or if the sum 
demanded exceeds two hundred dollars, a warrant of attach- 
ment must be obtained from the Judge of the judicial dis- 
trict, within some county of which, the cause of action 
arose; or, in case the defendant is a foreign corporation, 
within some county of which, it usually did business, or 
within some county of which, the defendant resided or did 
business within six months next preceding the issuing of 
the summons; or from the Clerk of the Superior Court of 
any county within said district. It shall be made return- 
able to the Superior Court of a county, in which the cause 
of action arose, or in which the defendant resided or did 



CIVIL PROCEDURE. 71 

business, within six months next preceding the issuing of 
the summons, or in which the property of the defendant 
sought to be attached, or some part of it, is at the issuing 
of the summons, or in case the defendant is a foreign cor- 
poration, in which it usually did business. 

s }200.— When warrant granted by Jnsticc of the Peace. 

If the action be founded on contract, and the sum 
demanded does not exceed two hundred dollars, the warrant 
of attachment must be obtained from, and made returnable 
before ,some Justice of the Peace of a county, to the Superior 
Court 'of which it might have been returnable under the 
preceeding section, had the sum demanded, exceeded two 
hundred dollars, or had the action not have been founded 
•on contract. 

^201.— In what cases warrants may he issned— Affidavits to be tiled. 

The warrant may be issued whenever it shall appear by 
affidavit, that a cause of action exists against such defen- 
dant, specifying the amount of the claim and the grounds 
thereof, and that the defendant is either a foreign corpora- 
tion, or not a resident of this State, or has departed there- 
from with intent to defraud his creditors or to avoid the ser- 
vice of a summons, or keeps himself concealed therein with 
like intent, or that such corporation or person has removed, 
or is about to remove, any of his or its property from this 
State, with intent to defraud his or its creditors, or has 
assigned, disposed of, or secreted, or is about to assign, dis- 
pose of, or secrete, any of his or its property with the like 
intent, whether such defendant be a resident of this State 
or not It shall be the duty of the plaintiff procuring such 
warrant, within ten days from the issuing thereof, to file the 
affidavits on which the same was granted in the office of the 
Clerk of the Superior Court to which, or with the Justice of 
-.the Peace, before whom, the process is made returnable. 



72 THE CODE OF 

§202. — Security on obtaining warrant. 

Before issuing the warrant, the officer issuing the same 
shall require a written undertaking on the part of the plain- 
tiff, with sufficient surety, to the effect, that if the defendant 
recover judgment, or the attachment be set aside by the 
order of the court, the plaintiff will pay all costs that may 
be awarded to the defendant, and all damages which he 
may sustain by reason of the attachment, not exceeding the 
sum specified in the undertaking, which shall be at least 
two hundred and fifty dollars. 

§203. — Warrant, to whom directed, and what to require. 

The warrant shall be directed to the sheriff of any county 
in which the property of such defendant may be, or in case 
it be issued by a Justice of the Peace to such sheriff, or to 
any constable of such county, provided, such county be that 
of the Justice issuing the warrant, and shall require such 
sheriff or constable to attach and safely keep, all the property 
ol such defendant within his county, or so much thereof as 
may be sufficient to satisfy the plaintiff's demand, the amount 
of which must be stated in conformity with the complaint, 
together with costs and expenses; it must also state when 
and where it shall be returned. Several warrants may be 
issued at the same time to the sheriffs of different counties. 

§204. — Mode of proceeding in executing warrant. 

The officer to whom such warrant of attachment is directed 
and delivered, shall seize and take into his possession the 
tangible personal property of the defendant, or so much 
thereof, as may be necessary, and he shall be liable for the 
care and custody of such property, as if the same had been 
seized under execution : he shall levy on the real estate of 
the defendant as prescribed for executions, he shall . make 
and return with the warrant, an inventory of the property 
seized or levied on : subject to the direction of the court, he 
shall collect and receive into his possession all debts owing 
to the defendant, and take such legal proceedings, either in 
his own name, or in that of the defendant as may be neces 
sary for that purpose. 



CIVIL PROCEDURE. 73 

(yi05» — Proceedings in ease of porishable property or vessel. 

If any property, so seized, shall be perishable, or of such 
character that the expense of keeping it until the determi- 
nation of the suit, would be likely to exceed one fifth of its 
value, or if any part of it consists of a vessel, or of any share 
or interest therein, the sheriff or other officer having posses- 
sion thereof, shall immediately apply to the court for author- 
ity to sell the same, stating the circumstances, and the same 
shall be sold, under the order and direction of the court. 

§206. — Interest in corporations or associatioas liable to attachment. 

The rights or shares which such defendant may have, in 
the stock of any association or corporation, together with 
the interests and profits thereon, and all other property in 
this State of such defendant, shall be liable to be attached 
and levied on, and sold to satisfy the judgment and execu- 
tion, 

<yZ07. — Attachment, how executed on property incapable of manual delivery. 

The execution of the attachment upon any such rights, 
shares, or any debts or other property incapable of manual 
delivery to the sheriff, shall be made, by leaving a certified 
copy of the warrant of the attachment, with the President 
or other head of the association or corporation, or the secre- 
tary, cashier or managing agent thereof, or with the debtor 
or individual holding such property, with a notice showing 
the property levied on. 

vj208. — Certificate of defendant's interest to be furnished. 

Whenever the sheriff or other lawful officer with a war- 
rant of attachment or execution, shall apply to any officer 
mentioned in the next preceeding section, or to any debtor 
or individual, for the purpose of attaching or levying on the 
property of the defendant in such warrant, such officer, 
debtor or individual shall furnish him with a certificate 
under his hand, designating the number of rights or shares 
of the defendant in such association or corporation, with any 



74 THE CODE OF 

dividend or any incumbrance thereon, or the amount and 
description of the property held by such association, corpo- 
ration, or individual, for the benefit of, or debt owing to the 
defendant. If such officer, debtor or individual refuse to do 
so, he may be required by the Court or Judge to attend 
before him, and be examined on oath concerning the same, 
and obedience to such order may be enforced by attachment. 

<j209« — Judgment, how satisfied. 

In case judgment be entered for the plaintiff in such 
action, the sheriff shall satisfy the same out of the property 
attached by him, if it shall be sufficient for that purpose. 

1. By paying over to such plaintiff the proceeds of all 
property sold by him, and of all debts or credits collected 
by him, or so much as shall be necessary to satisfy such 
judgment. 

2. If any balance remain due, and an execution shall 
have been issued on such judgment, he shall proceed to sell 
under such execution, so much of the attached property, 
real or personal, except as provided in subdivision four of 
this section, as may be necessary to satisfy the balance, if 
enough for that purpose shall remain in his hands; and in 
case of the sale of any rights or shares in the stock of a 
corporation or association, the sheriff shall execute to the 
purchaser a certificate of sale thereof, and the purchaser 
shall thereupon have all the rights and privileges in respect 
thereto which were had by such defendant. 

3. If any of the attached property belonging to the 
defendant, shall have passed out of the hands of the sheriff 
without having been sold or converted into money, such 
sheriff shall repossess himself of the same, and for that 
purpose, shall have all the authority which he had to seize 
the same under the attachment: and any person who shall 
wilfully conceal or withhold such property from the sheriff, 
shall be liable to double damages at the suit of the party 
injured. 

4. Until the judgment against the defendant shall be 
paid, the sheriff may proceed to collect the notes and other 



CIVIL PROCEDURE. 75 

evidences of debt, and the debts that may have been seized 
■or attached, under the warrant of attachment, and to prose- 
cute any bond he may have taken in the course of such 
proceedings, and apply the proceeds thereof to the payment 
of the judgment. 

At the expiration of six months, from the docketing of 
the judgment, the court shall have power upon the petition 
•of the plaintiff, accompanied by an affidavit setting forth 
fully all the proceedings which have been had by the sheriff, 
since the service of the attachment, the property attached, 
and the disposition thereof, and also the affidavit of the sheriff 
that he has used due diligence, and endeavored to collect 
the evidences of debt in his hands so attached, and that 
there remains uncollected of the same, any part or portion 
thereof, to order the sheriff to sell the same, upon such 
terms and in such manner as shall be deemed proper.* Notice 
of such application shall be given to the defendant or his 
attorney, if the defendant shall have appeared in the action. 
In case the summons has not been personally served on the 
defendant, the court shall make such rule or order, as to the 
service of notice and the time of service, as shall be deemed 
just. 

When the judgment and all costs of the proceedings shall 
have been paid, the sheriff, upon reasonable demand shall 
•deliver over to the defendant, the residue of the attached 
property, or the proceeds thereof. 

.$210.— When action to moYer notes, &c, of defendant, may be prosecuted by 
plaintiff in the action in which the* attachment issued. 
The actions herein authorized to be brought by the sheriff 
may be prosecuted by the plaintiff, or under his direction, 
upon the delivery by him to the sheriff of an undertaking 
executed by two sufficient sureties, to the effect, that the 
plaintiff will indemnify the sheriff, from all damages, costs 
and expenses on account thereof, not exceeding two hun- 
dred and fifty dollars in any one action. Such sureties shall 
in all cases when required by the sheriff, justify by making 
an affidavit that each is a householder, or free holder and 



76 THE CODE OF 

worth double the amount of the penalty of the bond over 
and above all demands and liabilities, and exemptions. 

§211.— Bond to sheriff oil attachment, how disposed of, ou judgment for defen- 
dant. 

If the foreign corporation, or absent, or absconding, or 
concealed defendant, recover judgment against the plaintiff 
in such action, any bond taken upon the issuing of the war- 
rant of attachment, and any bond taken by the sheriff, except 
such as are mentioned in the last section, all the proceeds of 
sales and monies collected by him, and all the property 
attached remaining in his hands, shall be delivered by him 
to the defendant or his agent on request, and the warrant 
shall be discharged and the property released. 

<j212.— Discharge of attachment, and return of property or its proceeds, to the 
defendant, on "lis appearance in action. 

Whenever the defendant shall have appeared in such 
action, he may apply to the Court in which the action is 
pending, or to the Judge thereof, for an order to discharge 
the same ; and if the same be granted, all the proceeds of 
sale, and moneys collected in such action, and all the pro- 
perty attached remaining in the hands of any officer of the 
Court, under any process or order in such action, shall be 
delivered or paid to the defendant or his agent, and released 
from the attachment. 

And where there is more than one defendant, and several 
property of either of the defendants has been seized by vir- 
tue of the order of attachment, the defendant whose several 
property has been seized, may apply in like manner for 
relief. 

§213.— FAMer taking o:i part of the defendant. Discharge of att.»chn»sati 

Upon such application the defendant shall deliver to the 
Court an undertaking, executed by at least two sureties, who 
are resident and free-holders or house-holders in this State. 
approved by such Court, to the effect that such sureties, ' 
will on demand, pay to the plaintiff the amount of judgment 



CIVIL PROCEDURE. 77 

that may be recovered against the defendant in the action, 
not exceeding the sum specified in the undertaking, which 
shall be at least double the amount claimed by the plaintiff 
in his complaint, If it shall appear by affidavit, that the 
property attached be less than the amount claimed by the 
plaintiff, the Court or Judge may order the same to be 
appraised and the amount of the undertaking shall then be 
double the amount so appraieed. And in all cases, the 
defendant may move to discharge the attachment, as in the 
ease of other provisional remedies. 

And where there is more than one defendant, and several 
property of either of the defendants, has been seized by vir- 
tue of the order of attachment, the defendant whose several 
property has been seized, may deliver to the Court an under- 
taking, in accordance with the provision of this section, to 
the effect that he will on demand, pay to the plaintiff the 
amount of judgment that may be recovered against such 
defendant. And all the provisions of this section applicable 
to such an undertaking shall be applied thereto. 

)211.— When the sheriff to return warrant, with his proceedings thereon. 

The sheriff shall return the warrant of attachment with a 
statement of his proceedings thereon, at the time and place 
at which it is on its face returnable, and upon, or at any 
time after such return, he may obtain from the Court to 
which the same was returnable, a certified copy thereof, 
which shall be held and deemed for the purpose of giving 
him authority, the same as the original, and when the war- 
rant shall have been fully executed or discharged, the 
sheriff shall return the same, with his proceedings, to the 
-aid Court. 



78 THE CODE OF 

CHAPTER V. 

PROVISIONAL REMEDIES. 

§215. — Powers of Conrt as to receivers, deposit of money, &e., in Court, and 
other provisional remedies. Judgment for sum admitted dne. 

A receiver may be appointed, — 

1. Before judgment, on the application of either party, 
when he establishes an apparent right to property which 
is the subject of the action, and which is in the possession 
of an adverse party, and the property, or its rents and pro- 
fits, are in danger of being lost, or materially injured or 
impaired; exoept in cases where judgment upon failure to* 
answer may be had on application to the Court; 

2. After judgment, to carry the judgment into effect; 

8. After judgment, to dispose of the property according; 
to the judgment, or to preserve it during the pendency of 
an appeal, or when an execution has been returned unsatis- 
fied, and the judgment-debtor refuses to apply his property 
in satisfaction of the judgment; 

4. In the cases provided in this Code and by special 
statutes, when a corporation has been dissolved, or is insol- 
vent or in imminent danger of insolvency, or has forfeited 
its corporate rights; and in like cases, of the property 
within this State of foreign corporations. Receivers of the 
property within this State- of foreign or other corporations 
shall be allowed such commissions as may be fixed by the 
Judge appointing them, not exceeding five per cent, on the 
amount received and disbursed by them. 

5. In such other cases as are now provided by law, or may 
be in accordance with the existing practice, except as other- 
wise provided in this act. 

When it is admitted, by the pleading or examination of a 
party that he has in his possession, or under his control, any 
money or other thing capable of delivery, which, being the 
subject of the litigation, is held by him as trustee for another 
party, or which belongs or is due to another party, the 



CIVIL PROCEDURE. 79 

Judge may order the same to be deposited in court, or 
delivered to such party, with or without security, subject to 
the further direction of the Judge. 

Whenever, in the exercise of his authority a Judge shall 
have ordered the deposit, delivery or conveyance of money 
or other property, and the order is disobeyed, the Judge, 
besides punishing the disobedience as for contempt, may 
make an order requiring the sheriff to take the money or 
property, and deposit, deliver, or convey it, in conformity 
with the direction oi the Judge. 

"When the answer of the defendant expressly, or by not 
denying, admits part of the plaintiff's claim to be just, the 
Judge, on motion, may order such defendant to satisfy that 
part of the claim, and may enforce the order as it enforces a 
judgment or provisional remedy. 



TITLE X. 

OF THE TRIAL AND JUDGMENT IX CIVIL ACTIONS. 

Chapter I. Jndgmeut upon failure to answer, &.<•. 
• " II. Issues and the mode of trial. 
" III. Trial by jnry. 
" IV. Trial by the court. 
" V. Trial by referees. 
(1 VI. The maimer ef entering judgment. 

CHAPTER 1. 

JUDGMENT UPON FAILURE TO ANSWER, AC 

<yll6.— .Ind^oieut detiued.j 

A judgment is the final determination of the rights of 
the parties in the action. 



80 THE CODE OF 

§217.— Judgment on failure of defendant to answer, or for excess over counter- 
claim. 

Judgment may be had, if the defendant fail to answer the 
complaint, as follows : 

1. In any action arising on contract for the recovery of 
money only, the plaintiff may file with the clerk proof of 
personal service of tile summons and complaint on one or 
more of the defendants, or of the summons according to the 
provisions of section seventy-six, and that no answer has 
been filed. The clerk shall thereupon enter judgment for 
the amount mentioned in the summons, against the defen- 
dant or defendants, or against one or more of several defen- 
dants, in the cases provided for in section eighty-seven. But 
if the complaint be not sworn to, and such action is on an 
instrument for the payment of money only, the clerk, on its 
production to him, shall assess the amount due to the plaintiff 
thereon ; and in other cases shall ascertain the amount which 
the plaintiff is entitled to recover in such action, from his 
examination, under oath, or other proof, and enter the judg- 
ment for the amount so assessed or ascertained. In case the 
defendant give notice of appearance in the action, he shall 
be entitled to five days' notice of the time and place of such 
assessment. 

Where the defendant, by his answer in such action, shall 
not deny the plaintiffs claim, but shall set up a counter- 
claim, amounting to less than the plaintiff's claim, judgment 
may be had by the plaintiff for the excess of said claim over 
the said counter-claim, in like manner in any such action, 
upon the plaintiff's filing with the clerk of the Court a state- 
ment admitting such counter claim, which statement shall 
be annexed to and be a part of the judgment-roll. 

2. In other actions the plaintiff may, upon the like proof, 
apply to the Court, after the expiration of the time for 
answering, for the relief demanded in the complaint. If the 
taking of an account or the proof of any fact be necessary 
to enable the Court to give judgment, or to carry the judg- 
ment into effect, the Court may take the account or hear the 
proof, or may, in its discretion, order a reference for that 



CIVIL PROCEDURE. 81 

purpose. And where the action is for the recovery of rrfoney 
only, or of specific real or personal property, with damages 
for the withholding thereof, the court may order the damages 
to be assessed by a jury, or, if the examination of a long 
account be involved, by a reference as above provided. If 
the defendant give notice of appearance in the action before 
the expiration of the time for answering, he shall be entitled 
to eight days' notice of the time and place of application to 
the Court for the relief demanded by the complaint. 

3. In actions where the service of the summons was by 
publication, the plaintiff may, in like manner, apply for 
judgment, and the court must thereupon require proof to be 
made of the demand mentioned in the complaint; and if the 
defendant be not a resident of the State must require the 
plaintiff or his agent to be examined on oath respecting any 
payments that have.been made to the plaintiff, or to any one 
for his use, on account of such demand, and may render 
judgment for the amount which he is entitled to recover. 
Before rendering judgment the' court may, in its discretion, 
require the plaintiff to oause to be filed satisfactory security, 
to abide the order of the court, touching the restitution of 
any estate or effects which may be directed by such judgment * 
to be transferred or delivered, or the restitution of any money 
that may be collected under or by virtue of such judgment, 
in case the defendant or his representatives shall apply and 
be admitted to defend the action, and shall succeed in such 
defence. 

£218.— Judgment on frivolous demurrer, answer or reply. 

If a demurrer, answer or reply be frivolous, the party pre- 
judiced thereby, upon a previous notice of five days may 
apply to the court or to the Judge thereof, either in or out of 
the court, for judgment thereon, and judgment may be given 
accordingly. 



82 THE CODE OF 

CHAPTER II. 

ISSUES, AND THE MODE OF TRIAL. 

§219.— The different kinds of issues. 

Issues arise upon the pleadings when a fact or conclusions 
of law is maintained by the one party and controverted by 
the other. They are of two kinds; 

1. Of law; and 

2. Of fact. 

§220.— Issue of law. 

An issue of law arises, 

1. Upon a demurrer to the complaint, answer or reply, or 
to some part thereof. 

§221. — Issue of fact. 

An issue of fact arises, 

1. Upon a material allegation in the complaint contro- 
verted by the answer; or, 

2. Upon new matter in the answer controverted by the 
reply; or, 

3. Upon new matter in the reply, except an issue of law 
is joined thereon. 

(yiii. — On issues of both law and fact, the issue of law to be tried first. 

Issues both of law and of fact may arise upon different 
parts of the pleadings in the same action. In such cases 
the issues of law must be first tried, unless the court other- 
wise direct. 

§223.— Trial defined. 

A trial is the judicial examination of the issues between 
the parties, whether they be issues of law or of fact. 

<>224. — Issnes, how tried. 

An issue of law must be tried by the Judge of the court, 
"unless it be referred, as provided in sections two hundred and 
forty-four and two hundred and lorty-five. An issue of 



CIVIL PROCEDURE. 83 

feet, in an action for the recovery of money only, or of 
specific real or personal property, or for a divorce from the 
marriage contract on the ground of adultery, must be tried 
by a jury, unless a jury trial be waived, as provided in sec- 
tion two hundred and forty, or a reference be ordered, as 
provided in sections two hundred and forty-four and two 
hundred and forty-five. 

§225. — Oilier issnes to be tried by the conrt or Judge. 

Every other issue is triable by the court, or the Judge 
thereof, who, however, may order the whole issue, or any 
specific question of fact involved therein, to be tried by a 
jury, or may refer it, as provided in sections two hundred 
and forty-four and two hundred and fortyfive. . 

§228.— Issnes of fact, when to be tried. 

Every issue of fact joined on the pleadings, and inquiry 
of damages required to be tried by a jury, shall be tried at 
the term of the court next ensuing such joinder of issue or 
order for inquiry; provided such issue shall have been 
joined or order for inquiry made, more than thirty days 
before such term, but if not, they shall be tried at the second 
term after such joinder or order. 

§22*. — Trial may be i><>stj>ofled by elerk, when. 

Any party to any action may apply to the court in which 
it is pending, or to the Judge thereof, after three days 
notice in writing to the adverse party, to have the trial 
deferred to a term subsequent to that in which it is regularly 
triable; such application must be made thirty days before 
the trial term, and must be on affidavit. The court or 
Judge may defer the trial as asked for, on such terms as 
shall be just, if satisfied: 

1. That the applicant has used due diligence to have his 
case ready for trial ; and, 

2. That by reason of circumstances beyond his control, 
which he shall set forth, he cannot have a fair trial at the 
regular trial term;. if the application is made by reason' - of 



84 THE CODE OF 

the expected absence of a witness, it shall state the name 
and residence of the witness, the facts expected to be proved 
by him, and the grounds for the expectation of his non- 
attendance, and that the applicant expects to procure his 
evidence at or before some named subsequent term. 

The applicant shall in all cases pay the costs of the appli- 
cation. 

v>228t — Trial postponed by Judge in term, when. 

The Judge at any time during the term at which an 
action is triable, may postpone the trial on the application 
of either party and on such terms as shall be just, if sat- 
isfied: 

1. That the applicant has used due diligence to be ready 
for trial. 

2. That he cannot have a fair trial at that term, by reason 
of circumstances stated, and if the ground of application 
be, the non-attendance of a witness, the affidavit shall 
contain the particulars required by subdivision two of 
section two hundred and twenty-seven. Unless the applicant 
shall also set forth in his affidavit, that the facts upon which 
hisapplication is grounded occurred, or came tohisknowledge 
too late to allow him to apply as prescribed in the last 
section, and that his application is made as soon as it 
reasonably could be after the knowledge of such facts, the 
postponement shall not be granted, except on the terms of 
the payment of the costs in the action for the term. 

£229. — Criminai calendar first disposed of. Order of disposing of issues in 
civil actions* 

The criminal calender shall be first disposed of, unless by 
consent of counsel, or for reasons satisfactory to the Judge, 
particular criminal actions may be deferred. The issues 
on the civil calendar shall be disposed of in the following 
order, unless, for the convenience of parties or the dispatch 
of business, the court shall otherwise direct: 



CIVIL PROCEDURE. 85 



1. Issues of fact to be tried by a jury ; 

2. Issues of fact to be tried by the court ; 

3. Issues of law. 



CHAPTER III. 



TRIAL BY JURY. 



§230.— Separate trials. 

A separate trial between a plaintiff and any of the several 
defendants may be allowed by the court, whenever, in its 
opinion, justice will thereby be promoted. 

§231.— Judge to be furnished with copy pleadings, &c. 

The clerk shall furnish the Judge with a copy of the 
summons and pleadings, and with the offer of the defendant 
if any shall have been made. 

§232.— General and special verdicts defined. 

A general verdict is that by which the jury pronounce 
generally upon all or any of the issues, either in favor of 
the plaintiff or defendant. A special verdict is that by 
which the jury find the facts only, leaving the judgment to 
the court. 

§233.— When jury may render either general or special verdict, and when 
Judge may direct special finding. 

In an action for the recovery of specific personal property, 
if the property have not been delivered to the plaintiff, or 
the defendant by his answer claim a return thereof, the jury 
shall assess the value of the property, if their verdict be in 
favor of the plaintiff; or if they find in favor of the defen- 
dant, and that he is entitled to a return thereof; and may 
at the same time assess the damages, if any are claimed in the 
complaint or answer, which the prevailing party has sus- 
tained by reason of the detention or taking and withhold- 
ing such property. 



SG THE CODE OF 

In every action for the recovery of money only, or specific 
real property, the jury, in their discretion, may render a 
general or special verdict. In all other cases, the court may 
direct the jury to find a special verdict in writing, upon all 
or any of the issues; and in all cases may instruct them if 
they render a general verdict, to find upon particular cmes- 
tions of facts, to be stated in writing, and may direct a 
written finding thereon. The special verdict or finding 
shall be filed with the clerk, and entered upon the minutes. 

§231. — On special finding with general verdict, former to control. 

Where a special finding of facts shall be inconsistent with 
the general verdict, the former shall control the latter, and 
the court shall give judgment accordingly. 

,^235. — Jnrj to assess defendant's damages in certain cases. 

When a verdict is found for the plaintiff in an action for 
the recovery of money, or for the defendant when a set-off 
for the recovery of money is established beyond the amount 
of the plaintiff's claim as established, the jury must also 
assess the amount of the recovery; they may also, under 
the direction of the court, assess the amount of the recovery 
when the court give judgment for the plaintiff on the 
answer. If a set-off, established at the trial, exceed the 
plaintiff's demand so established, judgment for the defen- 
dant must be given for the excess; or if it appear that the 
defendant is entitled to any other affirmative relief, judg- 
ment must be given accordingly. 

£236. — Eutry of the verdict. Motion for new trial on Judge's minutes. 

(1.) Upon receiving a verdict, the clerk shall make an 
entry in his minutes, specifying the time and place of the 
trial, the names of the jurors and witnesses, the verdict, and 
either the judgment rendered thereon, or an order that the 
cause be reserved for argument or further consideration. If 
a different direction be not given by the court, the clerk 
must enter judgment in conformity with the verdict. (2.) 



CIVIL PROCEDURE. 87 

If an exception be taken, it may be reduced to writing at 
the time, or entered in the Judge's minutes, and afterwards 
.settled as provided by the rules of the court, and then stated 
in writing in a case, or separately, with so much of the evi- 
dence as may be material to the questions to be raised, but 
a bill of exceptions need not be made. (3.) If the excep- 
tions be in the first instance stated in a .case, and it be 
necessary to separate them, the separation may be made 
under the direction of the Judge. (4.) The Judge who 
tries the cause may, in his discretion, entertain a motion, to 
be made on his minutes, to set aside a verdict and grant a 
new trial upon exceptions, or for insufficient evidence, or for 
excessive damages; but such motion can only be heard at 
the same term at which the trial is had. When such motion 
is heard and decided upon the minutes of the Judge, and an 
appeal is taken from the decision, a case or exceptions must 
be settled in the usual form, upon which the argument of 
the appeal must be had. 

^23T Judge to explain law, but to express no opinions on facts. 

No Judge, in giving a charge to the petty jury, shall give 
an opinion whether a fact is fully or sufficiently proven, 
such matter being the true office and province of the jury; 
but he shall state in a plain and correct manner, the evi- 
dence given 'in the case, and declare and explain the law 
arising thereon. 

§238.— Judge to put his instructions in writing. 

Every Judge, at the request of any party to an action on 
trial, made at or before the close of the evidence, before 
instructing the jury on the law, shall put his instructions in 
writing, and read them to the jury ; he shall then sign and 
file them with the Clerk as a part of the record of the action. 

§239 — Counsel to put their prayers for instruction in writing. 

Counsel praying of the Judge instructions to the jury, 
shall put their request in writing entitled of the cause, and 
sign them; otherwise the Judge may disregard them; they 
shall be filed with the clerk as a part of the record. 



88 THE CODE OF 

CHAPTER IV. 

TRIAL BY THE COURT. 

§240.— Trial by jury, how waived. 

Trial by jury may be waived by the several parties to an 
issue of fact, in actions on contract, and with the assent of 
the court, in other actions, in the manner following : 

1. By failing to appear at the trial. 

2. By written consent, in person or by attorney, filed with 
the clerk. 

3. By oral consent, entered in the minutes. 

$241— Oa trial by the court, judgment, how to be given. 

Upon the trial of a question of fact by the court, its decis- 
ion shall be given in writing, and shall contain a statement 
of the facts found, and the conclusions of law, separately ;. 
and upon a trial of an issue at law, the decision shall be 
made in the same manner, stating the conclusions of law. 
Such decision shall be filed with the clerk during the court 
at which the trial takes place. Judgment upon the decision 
shall be entered accordingly. 

§242. — Exceptions, how and when taken. 

[1.] For the purposes of an appeal, either party may 
except to a decision on a matter of law arising upon such 
trial within ten days after the judgment, in the same manner 
and with the same effect as upon a trial by jury. Provided, 
however, that where the decision does not authorize a final 
judgment, but directs further proceedings before a referee 
or otherwise, either party may except thereto, and make a 
case or exception as above provided in case of an appeal. 

[2.] And either party desiring a review, upon the evi- 
dence appearing on the trial, of the questions of law may r 
at any time within ten days after the judgment, or within 
such time as may be prescribed by the rules of the court,. 



CIVIL PROCEDURE. 89 

make a case or exceptions in like manner as upon a trial by 
jury, except that the Judge, in settling the case, must briefly 
specify the facts found by him, and his conclusions of law. 

</2l$. — Proceedings upon judgment on issue of law. 

On a judgment for the plaintiff upon an issue of law, the 
plaintiff may proceed in the manner prescribed by the first 
two subdivisions of section two hundred and seventeen, upon 
the failure of the defendant to answer, where the summons 
was personally served. If judgment be for the defendant,, 
upon an issue of law, and if taking of an account or the 
proof of any fact be necessary to enable the court to com- 
plete the judgment, a reference or assessment by jury may 
be ordered, as in that section provided. 



CHAPTER V 



TRIAL BY REFEREES. 



§244. — All issues referable by consent. 

All, or any, of the issues in the action, whether of fact or 
of law, or both, may be referred, upon the written consent 
of the parties: 

t>245. — When reference may be compulsorily ordered. 

Where the parties do not consent, the court may, upon 
the application of either, of its own motion, except where 
the investigation will require the decision of difficult ques- 
tions of law, direct a reference in the following cases: 

1. Where the trial of an issue of fact shall require the 
examination of a long account on either side; in which 
case the referee may be directed to hear and decide the 
whole issue, or to report upon any specific question of fact 
involved therein ; or, 



DO THF, CODE OF 

2. Where the taking of an account shall be necessary for 
the information of the court, before judgment, or for carry- 
ing a judgment order into effect ; or, 

3. When case involves a complicated question of boundary, 
or one which requires a personal view of the premises. 

• 4. Where a question of fact, other than upon the pleadings, 
shall arise, upon motion or otherwise, in any stage of the 
action. 



§246.— Mode of trial— Effect of report— Review. 

The trial by referees shall be conducted in the same 
manner, as a trial by the court. They shall have the same 
power to grant adjournments and to allow amendments to 
any pleadings and to the summons, as the court upon such 
trial, upon the same terms and with like effect. They shall 
have the same power to preserve order and punish all viola- 
tions thereof upon such trial, and to compel the attendance 
of witnesses before them by attachment, and to punish them 
as for a contempt for non-attendance or refusal to be sworn 
or testify, as is possessed by the court. They must state the 
facts found and the conclusions of law separately; and their 
decision must be given, and may be excepted to and 
reviewed in like manner, and with like effect in all respects 
a,s in cases of appeal under section two hundred and forty- 
two ; and they may in like manner settle a case or excep- 
tions. The report of the referees upon the whole issue 
shall stand as the decision of the court, and judgment may 
be entered thereon upon application to the Jndge, and his 
-order. When the reference is to report the facts, the report 
-shall have the effect of a special verdict. 

§24T« — Referees, how chosen — Who may be referee— Report. 

In all cases of reference the parties as to whom issues are 
formed in the action (except when the defendant is an infant 
or an absentee) may agree in writing upon a person or 
persons, not exceeding three, and a reference shall be ordered 
to him or them, and to no other person, or persons. And 



CIVIL PROCEDURE. 91 

if such parties do not agree, the court shall appoiut one or 
more referees, not more than three, who shall be free from 
exception. And no person shall be appointed referee to 
whom all parties in the action shall object, except in actions 
for divorce. And no Judge or Justice of any court shall sit 
as referee in any action pending in the court of which he is 
Judge or Justice, and not already referred, unless the 
parties otherwise stipulate. t The referee or referees shall 
make and deliver a report within sixty days from the time 
the action shall be finally submitted; and in default thereof, 
and before the report is delivered, either party may serve 
notice upon the opposite party that he elects to end the 
reference; and thereupon the action shall proceed as though 
no reference had been ordered, and the referees shall not in 
such case be entitled to any fees. 

The report of the referee shall be made to the clerk of the 
court in which the action is pending: either party after ten 
clays notice to the adverse party, may move the Judge to 
review such report, and set aside, modify, or confirm the 
same in whole or in part, and no judgment shall be entered 
on any reference except by order of the Judge. 



CHAPTER VI. 



MANNER OF ENTERING JUDGMENT. 



£2-18.— Judgment may be for or against any of the parties ; may grant defen- 
dant affirmative relief— Complaint may be dismissed for neglect to prosecute 
action— Jndginent against married woman. 

(1.) Judgment may be given for or against one or more 
of several plaintiffs, and for or against one or more of several 
defendants; and it may determine the ultimate rights of the 
parties on each side, as between themselves. 

(2.) And it may grant to the defendant any affirmative 
relief to which he may be entitled. 



92 THE CODE OF 

(3.) In an action against several defendants, the court 
may, in its discretion, render judgment against one or m,ore- 
of them, leaving the action to proceed against the others, 
whenever a several judgment may be proper. 

(4.) The court may also dismiss the complaint, with costs 
in favor of one or more defendants, in case of unreasonable 
neglect on the part of the plaintiff to serve the summons on 
other defendants, or to proceed in the cause against the 
defendant or defendants served. 

In an action brought by or against a married woman, 
judgment may be given against her as well for costs as for 
damages, or both for such costs and for such damages, in 
the same manner as against other persons, to be levied and 
collected of her separate estate and not otherwise. 

§249.— The relief to be awarded to the plaintiff. 

The relief granted lo the plaintiff, if there be no answer, 
cannot exceed that which he shall have demanded in his 
complaint ; but in any other case the court may grant him 
any relief consistent with the case made by the complaint 
and embraced within the issue. 

§250. — Rates of damages where damages are recoverable. 

Whenever damages are recoverable, the plaintiff may 
claim and recover, if he show himself entitled thereto, any 
rate of damages which he might have heretofore recovered 
for the same cause of action. 

§251. — Jadgment in action for recovery of personal property. 

In an action to recover the possession of personal property,, 
judgment for the plaintiff may be for the possession, or for 
the recovery of possession, or for the value thereof, in case a 
delivery cannot be had, and the damages for the detention. 
If the property have been delivered to the plaintiff, and the 
defendant claim a return thereof, judgment for the defen- 
dant may be for a return of the property, or the value thereof 
in case a return cannot be had, and damages for taking and 
withholding the same. 



CIVIL PROCEDURE. 93 

425?, — Clerk to cuter judgment* on judgment book, al*o jndgmeuts rendered 
in other courts, and index them. 

The Clerk of the Superior Court shall enter every judg- 
ment of the court, on his judgment book; it shall specify 
clearly the relief granted, or other determination of the 
action ; he shall also enter on said book all judgments ren- 
dered, in any other court, and. authorized, by law to be so 
entered, and shall keep an alphabetical index of the whole, 
with the dates and numbers thereof. 

§255.— Judgment roll. 

Unless the party or his attorney shall furnish a judgment- 
roll, the clerk, immediately after entering the judgment, 
shall attach together, and. file the following papers, which 
shall constitute the judgment-roll: 

1. In case the complaint be not answerecUby any defen- 
dant, the summons and oomplaint, or copies thereof, proof 
of service, and that no answer has been received, the report 
if any, and a copy of the judgment. 

2. frrall other cases, the summons, pleadings, or copies 
thereof, and a copy of the judgment, with any verdict or 
report, the offer of the defendant, exceptions, case, and all 
orders and papers in any way involving the merits and 
necessarily affecting the judgment. 

5*54.— Existing suits. Judgments, when and how to be docketed. Seemed en 
appeal. 

Upon filing a judgrnent-roTiupon a judgment directing in 
whole or in part the payment of money, it may be docketed 
with the clerk ol the county where the judgment -roll was 
iiled, and in any other county upon the filing with the clerk 
thereof a transcript of the original " docket, " and shall be 
a lien on the real property in the county, where the same is 
docketed, of every person against whom any such judgment 
shall be rendered, and which he may have at the time of 
the docketing thereof in the county in which such real pro- 
perty is situated, or which he shall acquire at any time there- 
after, for ten years from the time of docketing the same in 



94 ' THE CODE OF 

the county where the judgment-roll was filed. But the 
time during which the party recovering or owning such 
judgment shall be, or shall have been, restrained from pro- 
ceeding thereon by an order of injunction, or other order, 
or by the operation of any appeal, shall not constitute any 
part of the ten years aforesaid, as against the defendant in 
such judgment, or the party obtaining such orders or making 
such appeal, or any other person who is not a purchaser, 
creditor or mortgagee in good faith. But whenever an 
appeal from any judgment shall be pending, and the under- 
taking requisite to stay execution on such judgment shall 
have been given, and the appeal perfected as provided in 
the Code, the court in which such judgment was recovered 
may, on special motion, after notice to the person owning 
the judgment, on such terms as they shall see fit, direct an 
entry to be made by the clerk on the docket of such judge- 
ment, that the same is " secured on appeal, " and thereupon 
it shall cease, during the pendency of said appeal, to be a 
lien on the real property of the judgment-debtor, as against 
purchasers and mortgagees in good faith, 

All executions issuing upon judgments docketed in a 
county other than that in which the original judgment was 
rendered, shall be returned to the court from which they 
issued; the return noted on the Execution Docket; and the 
executions transmitted to the clerk of the court in which the 
original judgment was taken. The provisions of this section 
shall apply to existing judgments as well as to all hereafter 
rendered. 



CIVIL PROCEDURE. 95> 

TITLE XI. 

OF TOE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. 

Chapter I. The execution. 

" II. Prccie(!in?s supplements rj to execution. 

CHAPTER I. 

THE EXECUTION. 

^255. — Execution within three years of course. 

"Writs of execution for the enforcement of judgments as 
now used are modified in conformity to this title, and the 
party in -whose favor judgment has been heretofore or shall 
hereafter be given, and in case of his death his personal 
representatives duly appointed, may at any time within 
three years after the entry of judgment, proceed to enforce 
the same, as prescribed by this title. 

The provisions of this title shall apply to existing judg- 
ments except in the cases provided for, by the ordinance of 
th £ Convention of this State entitled "An Ordinance ^y* 
respecting the Jurisdiction of the Courts of this Sta?t£, 
ratified 14th of March 18G8, which shall be governed by the 
exsting law. 

<256. — After three \ears, to be issued oit!} by leave of court. Lea>e how 
obtained. 

After the lapse of three years from the entry of judgment, 
an execution can be issued only by leave of the court, upon 
motion, with personal notice to the adverse party, unless he 
be absent or non-resident, or cannot be found to make such 
service, in which case such service may be made by publi- 
cation, or in such other manner as the court shall direct. 
Such leave shall not be given unless it be established by the 
oath of the party, or other satisfactory proof, that the judg- 
ment, or some part thereof, remains unsatisfied and due. 



% THE CODE OF 

But the leave shall not be necessary when execution has 
been issued on the judgment within the three years next 
preceeding the suing for execution, and returned unsatisfied 
in whole or in part. 

§257.— Jndgnicnts, how enforced. 

Where a judgment requires the payment of money, or the 
delivery of real or personal property, the same may be 
enforced in those respects by execution, as provided in this 
Title. Where it requires the performance of any other act, 
a certified copy of the judgment may be served upon the 
party against whom it is given, or the person or officer who 
is required thereby or by law to obey the same, and his 
obedience thereto enforced. If he refuse, he may be pun- 
ished by, the court as for contempt. 

<j258.— The different kinds of execution. 

There shall be three kinds of execution ; one against the 
property of the judgment debtor ; another against his per- 
son ; and the third for the delivery of the possession of real 
or personal property, or such delivery with damages for 
withholding the same. They shall be deemed the A>cess 
of the court, and shall be subscribed by the clerk, and where 
to run out of his county, sealed with the seal of his court. 

§259. — To what comities execution may be issned. Execution against a mar- 
ried woman. 

When the execution is against the property of the judg- 
ment debtor, it may be issued to the sheriff of any county 
where the judgment is docketed. When it requires the 
delivery of real or personal property, it must be issued to 
the sheriff of the county where the property, or some part 
thereof, is situated. Executions may be issued at the same 
time to different counties. 

Real property adjudged to be sold must be sold in the 

county where it lies, by the sheriff of the county, or by a 

, referee appointed by the court for that purpose; and there- 



CIVIL PROCEDURE. 97 

upon the sheriff' or referee must execute a conveyance to 
the purchaser, which conveyance shall be effectual to pass 
the rights and interests of the parties adjudged to be sold. 

An execution may issue against a married woman, and it 
shall direct the levy and collection of the amount of the 
judgment against her from her separate property, and not 
otherwise. 

^260. — Execution against the person, in what eases. 

If the action be one in which the defendant might have 
been arrested, as provided in section one hundred and forty- 
nine and section one hundred and forty-one, an execution 
against the person of the judgment debtor may be issued to 
any county within the State, after the return of an execution 
against his property unsatisfied in whole or in part. But no 
execution shall issue against the person of a judgment debtor, 
unless an order of arrest has been served, as in this act pro- 
vided, or unless the complaint contains a statement of facts 
showing one or more of the causes of arrest required by sec- 
tion one hundred and forty nine. 

§261. — Form of the execution. 

The excution must be directed to the sheriff, or coroner 
when the sheriff is a party or interested, subscribed by the 
clerk of the court, and must intelligibly^refer to the judg- 
ment, stating the county jvitere t-fee judgment-roll or trans- 
cript is filed, the names of the parties, the amount ' of the 
judgment, if it be for money, and the amountractually due 
thereon, and the time of docketing^in the 'county to- which 
the execution is issued, and shall require the'orS^er substan- 
tially as fojlows: 

1. If it be against the property of tl*e judgment^ijebtor, it 
shall require the officer to satisfy tiie w j*idgment"out,of the 
personal property, of sucli debtor; and if sufficient personal 
pro pert y cannot^iutQundy-out of the rea^rfopefty belonging 
tonim on the day when the judgment wasVTocketed in the 
county, or at anv time^thereafter. <4*f v 

"ii 



[)S THE CODE OF 

2. If it be against real or personal property in the hands 
of personal representatives, heirs, devisees, legatees, tenants 
of real property or trustees, it shall require the officer to 
satisfy the judgment out of such property. 

3. If it be against the person of the judgment debtor, it 
shall require the officer to arrest such debtor, and commit 
him to the jail of the county until he shall pay the judg- 
ment or be discharged according to law. 

4. If it be for the delivery of the possession of real or 
personal property, it shall require the officer to deliver the 
possession of the same, particularly describing it, to the 
party entitled thereto, and may at the same time require the 
officer to satisfy any costs, damages, or rents or profits 
recovered by the same judgment, out of the personal prop- 
erty of the party against whom it was rendered, and the 
value of the property for which the judgment was recovered, 
to be specified therein; if a delivery thereof cannot be had, 
and if sufficient personal property cannot be found, then out 
of the real property belonging to him on the day when 
the judgment was docketed, or at any time thereafter, 
and shall in that respect be deemed an execution against 
property. 

£262.— To be returnable in sixty days. 

The execution shall be returnable within sixty days, after 
its receipt by the officer, to the clerk with whom the record 
of judgment is filed. 

<:Jt>3.— Existing laws relating t;> execution continced, nnti! otherwise provided. 

Until otherwise provided by the Legislature, the existing 
provisions of law, not in conflict with this chapter, relating 
to executions and their incidents, the property liable to sale 
on execution, the sale and redemption thereof, the powers 
and rights of officers, their duties thereon, and the proceed- 
ings to enforce those duties, and the liability of their sure- 
ties sha!l apply to the executions prescribed by this chapter. 



CIVIL PROCEDURE. 99 

But the sheriff may sell on due advertisement on the first 
three days in any month, and if one of them be Sunday it 
shall not be counted. 



CHAPTER II. 

PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION. 

£26i.— Existing suits— Order for discovery of property, examination of judg- 
ment debtor, &c. 

(1.) "When an execution against property of the judgment 
debtor, or any one of several debtors in the same judgment 
issued to the sheriff of the county where he resides or has 
a place of business, or if he do not reside in the State, to 
the sheriff of the county where a judgment-roll or a tran- 
script of a Justice's judgment for twenty-five dollars, or 
upwards, exclusive of costs, is filed", is returned unsatisfied, 
in whole or in part, the judgment creditor, at any time after 
such return made, is entitled to an order from the court to 
which the execution is returned, or from the Judge thereof, 
requiring such debtor to appear arid answer concerning his 
property, before such court or Judge, at a time and place 
specified in the order, within the county to which the 
execution was issued. (2.) After the issuing of an execu- 
tion against property, and upon proof by affidavit, of a 
party or otherwise, to the satisfaction of the court, or a 
Judge thereof, that any judgment debtor, residing in the 
judicial district where such Judge or officer resides, has 
property which he unjustly refuses to apply towards the 
satisfaction of the judgment, such court or Judge may, by 
an order, require the judgment debtor to appear at a speci- 
fied time and place, to answer concerning the same ; and 
such proceedings may thereupon be had for the application 
of the property of the judgment debtor towards the satis- 
faction of the judgment as are provided upon the return of 
an execution. (3.) On an examination under this section, 



100 THE CODE OF 

either party may examine witnesses in his behalf, and the 
judgment debtor may be examined in the same manner as 
a witness. (4.) Instead of the order requiring the attend- 
ance of the judgment debtor, the Judge may, upon proof 
by affidavit or otherwise, to his satisfaction, that there is 
danger of the debtor's leaving the State, or concealing him- 
self, and that there is reason to believe he has property 
which he unjustly refuses to apply to such judgment, issue 
a warrant requiring the sheriff of any county where such 
debtor may be, to arrest him and bring him before such 
Judge. Upon being brought before the Judge, he may be 
examined on oath, and, if it then appears that there is 
danger of the debtor leaving the State, and that he has 
property which he has unjustly refused to apply to such 
judgment, ordered to enter into an undertaking, with one 
or more sureties, that he will, from time to time, attend 
before the Judge as he shall direct, and that he will not, 
during the pendency of the proceedings, dispose of any 
property not exempt from execution. In default of enter- 
ing- into such undertaking, he may be committed to prison 
by warrant of the Judge, as for a contempt. (5.) No person 
shall, on examination pursuant to this chapter, be excused 
from answering any question on the ground that his exam- 
ination will tend to convict him of the commission of a 
fraud; but his answer shall not be used as evidence against 
him in any criminal proceeding or prosecution; Nor shall 
he be excused from answering any question, on the ground 
that he has, before the examination, executed any convey- 
ance, assignment or transfer of his property for any pur- 
pose, but his answer shall not be used as evidence against 
him in any criminal proceeding or prosecution. 

t/265.— Existing suits— Any debtor may pay execution against his creditor. 

After the issuing of execution against property, any 
person indebted to the judgment debtor may pay to the 
sheriff the amount of his debt, or so much thereof as shall 
be necessary to satisfy the execution; and the sheriff's 
receipt, shall be a sufficient discharge, for the amount so 
paid. 



CIVIL PROCEDURE. 101 

§266.— Existing suits. Examination of debtors of judgment debtor, or of 
those having property belonging to him. Joint debtor. 

After the issuing or return of an execution against pro- 
perty of the judgment debtor, or of any one of several debtors 
in the same judgment, and upon affidavit that any person 
or corporation has property of such judgment debtor, or is 
indebted to him in an amount exceeding ten dollars, the 
Judge may, by an order, require such person or corporation, 
or any officer or member thereof, to appear at a specified 
time and place, and answer concerning the same. The 
Judge may also, in his discretion, require notice of such 
proceeding to be given to any party to the action, in such 
manner as may seem to him proper. 

The proceedings mentioned in this section and in section 
two hundred and sixty-four may be taken upon the return 
of an execution unsatisfied, issued upon a judgment recov- 
ered in an action against joint debtors, in which some of the 
defendants have not been served with the summons by 
which said action was commenced, so far as relates to the 
joint property of such debtors; and all actions by creditors 
to obtain satisfaction of judgments out of the property of 
joint debtors are maintainable in the like manner and to the 
like effect. These provisions shall apply to all proceedings 
and actions now pending, and not actually terminated by 
any final judgment or decree, and not embraced in the 
Ordinance of the Convention of this State, entitled " An 
Ordinance respecting the Jurisdiction of the Courts of this 
State, " ratified fourteenth day of March 1868. 

5267. — Existing suits. Witnesses required to testify. 

Witnesses may be required to appear and testify on any 
proceedings under this chapter, in the same manner as upon 
the trial of an issue. 

§268.— Existing suit. Compelling party or witnesses to attend. 

The party or witness may be required to attend before the 
Judge, or before a referee appointed by the court or Judge ; 
if before a referee, the examination shall be taken by the 



102 THE CODE OF 

referee, and certified to the Judge. All examinations and! 
answers before a Judge or referee, under this chapter, shall 
be on oath, except that when a corporation answers, the 
answer shall be on the oath of an afficer thereof. 

§269. — Existing suits. What property may be ordered to be applied to the 
execution. J 

The Judge may order any property of the judgment 
debtor, not exempt from execution, in the hands either of 
himself or any Other person, or due to the judgment debtor, 
to be applied towards the satisfaction of the judgment:, 
except that the earnings of the debtor for his personal ser- 
vices, at any time within sixty days next preceeding the 
order, cannot be so applied when it is made to appear, by the 
debtor's affidavit or otherwise, that such earnings are neces- 
sary for the use of a family supported wholly or partly by 
his labor. 

</Z10. — Existing suits. Judge may appoint receiver and prohibit transfer, 
&c, of property. Order, &c. 

The Judge may also, by order, appoint a receiver of the 
property of the judgment debtor, in the same manner, and 
with the like authority, as if the appointment was made by 
the court, according to section two hundred and fifteen. But 
before the appointment of such receiver, the Judge shall 
ascertain, if practicable, by the oath of the party or other- 
wise, whether any other supplementary proceedings are 
pending against the judgment debtor, and if such proceed- 
ings are so pending, the plaintiff therein shall have notice 
to appear before him, and shall likewise have notice of all 
subsequent proceedings in relation to said receivership. No 
more than one receiver of the property of a judgement 
debtor shall be appointed. The Judge may also, by order, 
forbid a transfer or other disposition of the property of the 
judgment debtor not exempt from execution, and any inter- 
ference therewith. 



CIVIL PROCEDURE. 103 

Whenever +lie Jucl S e sha11 £ mnt an order for the appoint- 
, f • r * the property of the judgment debter, 

ment of a receiver o. tUL ?> r •> i. ? ,, c 

u ii i x:i ^ -~ *!■* office of the Clerk of the bupe- 
the same shall be hied in the u * uwv . * 

n , „ „ . i ,,' a 'itu ifftnent-roll m the 

rior Court of the county where the* J Uv £> 

action or transcript from justice's judgment, UpOP-W ic ie 
proceedings are taken, is filed; and the clerk shu. r 
the order in a book to be kept for that purpose in his office, 
to be called " Book of orders appointing receivers ot judg- 
ment debtors, " and shall note the time of the filing of said 
order therein. A certified copy of said order shall be deliv- 
ered to the receiver named therein, and he shall be vested 
with the property and effects of the judgment debtor from 
the time of the filing and recording of the order as aforesaid. 
The receiver of the judgment debtor shall be subject to the 
direction and control of the court in which the judgment 
was obtained upon which the preceedings are founded. 

But before he shall be vested with any real property of 
such judgment debtor, a certified copy of said order shall 
also^e filed and recorded on the execution docket, in the 
office of the clerk of the Superior Court of the county in 
which any real estate of such judgment debtor sought to be 
effected by such order is situated, and also in the office of 
the clerk of the Superior Court of the county in which such 
judgment debtor resides. 

$271t— Existing suits— Proa :on daim of another party to p! i>i 

an denial of indebtedness to judgment debtor. 

If it appear that a person or corporation alleged to have 
property of the judgment debtor, or indebted to him, claims 
an interest in the property adverse to him, or denies the 
debt, such interest or debt shall be recoverable only in an 
action against such, person or corporation by the receiver; 
but the Judge 'may, by order, forbid a transfer or other dis- 
position of such property or interest, till a sufficient oppor- 
tunity be given to the receiver to commence the action, and 
prosecute the same to judgment and execution; but such 
order may be modified or dissolved by the Judge granting 
the same, at any time, on such security as he shall direct. 



104 THE CODE OF 

$272.— Existing suits— Reference by Judge. 

The Judge may, in his discretion, order a reference to a 
referee agreed upon by the parties, or appointed by him, to 
report the evidence or the facts, and may, in his discretion, 
appoint such referee in the first order, or at any time. 

$273.— Existing snits— Cost of proceeding. 

The Judge may allow to the judgment creditor, or to any 
party so examined, whether a party to the action or not, 
witnesses' fees and disbursements, and a fixed sum in addi- 
tion, not exceeding thirty dollars, as costs. 

$274.— Existing snits— Disobedience of order, how punished. 

If any person, party, or witness, disobey an order of the 
Judge or referee, duly served, such person, party, or witness, 
may be punished by the Judge as for a contempt. And 
in all cases of commitment under this chapter, the person 
committed may, in case of inability to perform the act 
required, or to endure the imprisonment, be discharged 
from imprisonment by the court or Judge committing him, 
or the court in which the judgment was rendered, on such 
terms as may be just. 

The sections of this chapter, from section two hundred 
and sixty-four, to section two hundred and seventy-fiu r loth 
inclusive, shall be applicable to all judgments which shall 
be recovered after the ratification of this Act, except judg- 
ments upon causes of action embraced in the provisions of 
an Ordinance passed by the Convention of this State, entitled 
" An Ordinance respecting the Jurisdiction ol the Courts of 
this State," ratified on the fourteenth of March, 186S, which 
shall be governed by the existing laws. 



CIVIL PROCEDURE. 105 

TITLE XII. 

OF TIIE COSTS IX CIYir, ACTIONS. 

§275.— Fee bill of attorneys abolished. 

All statutes establishing or regulating the costs or fees of 
attorneys, solicitors, and counsel in civil actions, and all 
existing rules and provisions of law restricing or controlling 
the right of a party to agree with an attorney, solicitor, or 
counsel, for his compensation are repealed; and hereafter 
the measure of such compensation shall be left to the agree- 
ment, express or implied, X)f the parties. But there may be 
allowed to the prevailing party, upon the judgment, certain 
sums by way of indemnity for his expenses in the action , 
which allowances are in this act termed costs. 

i2T6.— When allowed of course to the plaintiff.— Several actions on one instru- 
ment. 

Costs shall be allowed of course to the plaintiff, upon a 
recovery, in the following cases: 

1. In an action for the recovery of real property, or when 
a claim of title to real property arises on the pleadings, or 
is certified by the court to have come in question at the 
trial ; 

2. In an action to recover the possession of personal 
property ; 

3. In the actions of which a court of Justice of the Peace 
has no jurisdiction ; 

4. In an action for the recovery of money, where the 
plaintiff shall recover fifty dollars; but in an action for 
assault, battery, false imprisonment, libel, slander, malicious 
prosecution, criminal conversation, or seduction, if the plain- 
tiff recover less than fifty dollars damages, he shall recover 
no more cost than damages. And in an action to recover 
the possesion of personal property, if the plaintiff recover 
less than fifty dollars damages, he shall recover no more 
costs than damages, unless he recovers also property, the 



106 THE CODE OF 

value of which, with the damages, amounts to fifty dollars, 
or the possession of property be adjudged to him, the value 
of which, with the damages, amounts to fifty dollars; such 
value must be determined by the jury, court, or referee by 
whom the action is tried. When several actions shall be 
brought on one bond, recognizance, promissory note, bill of 
exchange, or other instrument in writing, or in any other 
case, for the same cause of action, against several parties 
who might have been joined as defendants in the same 
action, no costs other than disbursements shall be allowed 
to the plaintiff in more than one of such actions, which 
shall be at his election, provided that the party or parties 
proceeded against in such other action or actions shall at the 
time, of the commencement of the previous action or actions 
have been within the State, and not secreted. 

§277. — When allowed to defendant. 

Costs shall be allowed of course to the defendant, in the 
actions mentioned in the last section, unless the plaintiff be 
entitled to costs therein. 

()i7S. — When allowed to either party, in the diseretiou of the eonH. 

In other actions, costs may be allowed or not, in the dis- 
cretion of the court 

In all actions where there are several defendants not 
united in interest, and making separate defences by separate 
answers, and the plaintiff fails to recover judgment against 
all, the court may award costs to such of the defendants as 
have judgment in their favor, or any of them. 

In the following cases the costs of an appeal to any court 
shall be in the discretion of the court: 

1. When a new trial shall be ordered; 

2. When a judgment shall be affirmed in part, and 
reversed in part. 

§279. — Amount of costs allowed. 

When allowed costs shall be as follows: 

1. To either party for whom judgment shall be given, his 
actual disbursements for fees to the officers entitled to receive 
fees; and in addition thereto, 



CIVIL PROCEDURE. 107 

2. To the plaintiff when, in any action or proceeding, 
judgment shall be rendered for him by confession; or for 
want of an answer, or for other plea of the defendant, ten 
dollars. 

3. To the defendant when judgment shall be rendered 
for him against the plaintiff by confession, or for want of a 
complaint or pleading of any sort, ten dollars. 

4. To either party in whose favor judgment shall be ren- 
dered by the Judge, on an appeal from any order or decision 
of the Clerk of the Superior Court, five dollars. 

5. To either party in whose favor judgment shall be given 
by a Judge, on an issue of law joined on the pleadings, if 
argued by counsel before the Judge, ten dollars ;" if not so 
argued, five dollars. 

7. To either party recovering judgment uponVi trial by 
Jury, fifteen dollars ; and if the trial shall necessarily occupy 
more than one day, five dollars for every additional day. 

8. On every order for the postponement of the trial to 
another term made before a term at which it is triable, three 
dollars, to be paid or not, by the party making the applica- 
tion, in the discretion of the court. 

9. On every order for the postponement of the trial to 
another term, made during a term at which the case is 
triable, five dollars, besides the actual disbursements of the 
adverse party in procuring the attendance and payment of 
his witnesses, to be paid by the party making the appli- 
cation, unless the Judge in his discretion shall order 
otherwise. 

10. In addition to the above, to either party where a new 
trial shall be had, for ail proceedings after the granting of 
such new trial, including the trial, fifteen dollars; for attend- 
ing upon and taking the deposition of a witness condition- 
ally, or attending to perpetuate his testimony, five dollars: 
for drawing interrogatories to annex to a commission for the 
taking of testimony, three dollars; for attending the exam- 
ination of a party before trial, three dollars; for making and 
serving a case, or case containing exceptions, five dollars, 
except that where the case shall necessarily contain more 



108 THE CODE OF 

than fifty folios, there shall be allowed five dollars in addi- 
tion thereto; and for making and serving amendments 
thereto, five dollars. Provided that the costs for making 
and serving a case, or case with exceptions, shall only be 
allowed where the case was not excepted to by the adverse 
party, or, when being excepted to, it was approved by the 
Judge; and costs for amendments proposed thereto by the 
adverse party, shall only be allowed when the amendments 
shall be material and accepted by the adverse party, or not 
being accepted, shall be approved by the Judge. If the case 
and amendments proposed be each partly allowed and partly 
disallowed by the Judge, no costs shall be allowed to either 
party. To the plaintiff for procuring the appointment of 
a guardian of an infant defendant, two dollars; and no 
more shall be allowed for the appointment of guardians in 
any one action. To the plaintiff for procuring an order of 
injunction, ten dollars. 

11. To either party on appeal to the Supreme Court, 
thirty dollars; and when a judgment is affirmed, the court 
may, in its discretion, also award damages for the delay, 
not exceeding ten per cent, on the amount of the judgment. 
The same costs shall be allowed to the plaintiff in proceed- 
ings under chapter two, title XIV, sections three hundred 
and eighteen to three hundred and twenty-four, both inclu- 
sive, as upon the commencement of an action. 

<j280. — Additional allowance. 

In addition to these allowances T there shall be allowed to 
the plaintiff, upon the recovery of judgment by him, in 
any action for the partition of real property, or for the fore- 
closure of a mortgage, or in any action in which a warrant 
of attachment has been issued, or for an adjudication upon 
a will or other instrument in writing, and in proceedings 
to compel the determination of claims to real property, the 
sum of five per cent, on the recovery, as in the next section 
prescribed, for any amount not exceeding two hundred 
•dollars; and additional sum of three per cent, for any addi- 



CIVIL PROCEDURE. 109 

tional amount not exceeding four hundred dollars; and an 
additional sum of two per cent, for any additional amount 
not exceeding one thousand dollars. 

And in the actions above named, if the same shall be 
settled before judgment therein, like allowances upon the 
amount paid or secured upon such settlement, at one-half 
the rates above specified. 

$281.— Allowance, how computed— Difficult aad extraordinary cases. 

These rates shall be estimated upon the value of the 
property claimed or attached, or affected by the adjudica 
tion upon the will or other instrument, or sought to be 
partitioned, or the amount found due or unpaid upon the 
mortgage in an action for foreclosure. And whenever it 
shall be necessary to apply to the court for an order enforc- 
ing the payment of an installment falling due, after judg- 
ment, in an action for foreclosure, the plaintiff shall be 
entitled to the rate of allowance in the last section prescribed ■ 
but to no more in the aggregate than if the whole amount 
of the mortgage had been due when judgment was entered. 
Such amount of value must be determined by the court or 
by the commissioners, in case of actual partitions. In 
difficult and extraordinary cases, where a defence has been 
interposfcfl, or in sucli cases where a trial has been had, and 
in actions or proceedings for the partition of real estate, the 
court may also, in its discretion, make a further allowance 
to any party, not exceeding five per cent, upon the amount 
of the recovery or claim, or subject-matter involved. 

$2 82— Report, when allowed. 

When the judgment is for the recovery of money, interest, 
from the time of the verdict or report until judgment be 
finally entered, shall be computed by the clerk, and added 
to the costs of the party entitled thereto. 

$283. — Costs, how to be inserted in judgment. Adjustment] of interlocutory 
eosts. 

The Clerk shall insert in the entry of judgment, on the 

application of the prevailing party, upon five days notice to 

l.e other, the sum of the allowances for costs, as provided 



.110 THE CODE OF 

by this Code, the necessary disbursements, including the 
fees of officers allowed by law, the fees of witnesses, the rea- 
sonable compensation of commissioners in taking depositions, 
the fees of referees, and the expense of printing the papers 
for any hearing when required by a rule of the court. The 
disbursements shall be stated in detail and verified by affi- 
davit. A copy oi the items of the costs and disbursements 
shall be served, with a notice of adjustment. 

Whenever it shall be necessary to adjust costs in any 
interlocutory proceeding in an action, or in any special pro- 
ceedings, the same shall be adjusted by the Judge before 
whom the same may be heard, or the court befoie which the 
same may be decided or pending, or in such other manner 
as the Judge or court may direct. 

§284.— Fees of clerks, sheriffs, &e. 

The fees of the clerk, sheriff and other officers of the court, 
shall be as prescribed by law. 

</285.— Referees' fee. 

The fees of referees shall be three dollars to each, for every 
day spent in the business of the reference; but the parties 
may agree in writing upon any other rate of compensatoin. 

\,2 86.— Costs against iafast plaintiff. 

When costs are adjudged against an infant plaintiff, the 
guardian by whom he appeared in the action shall be 
responsible therefor, and payment thereof may be forced by 
attachment. 

§287»— Costs in action by or against an executor or administrator, trustees of 
an rx;>fess trust, or a person expressly authorized by statute to sue. 

(1.) In an action prosecuted or defended by an executor, 
administrator, trustee of an express trust, or a person 
expressly authorized by statute, costs shall be recovered, as 
in an action by and against a person prosecuting or defend- 
ing in his own right; but such costs shall be chargeable only 



CIVIL PROCEDURE. Ill 

upon or collected of the estate, fund, or party represented, 
unless the court shall direct the same to he paid by the 
plaintiff or defendant personally, for mismanagement or bad 
faith in such action or defence. But this section shall not be 
construed to allow costs against executors or administra- 
tors where they are now exempted therefrom by law. (2.) 
And whenever any claim against a deceased person shall be 
referred, the prevailing party shall be entitled to recover the 
fees of referees and witnesses, and other necessary disburse- 
ments, to be taxed according to law. 

<J2SS— Costs in civil actions by tie State. 

In all civil actions prosecuted in the name of the State, by 
an officer duly authorized for that purpose, the State shall be 
liable for costs in the same cases and to the same extent as 
private parties. If a private person be joined with the State 
as plaintiff, he shall be liable in the first instance for the 
defendant's costs, which shall not be recovered of the State 
till after execution issued therefor against such private party 
and returned unsatisfied. 

£2S9. — Costs iu aciiou by the State for a private person, 

In an action prosecuted in the name of the State for the 
recovery of money or property, or to establish a right or 
claim for the benefit of any county, city, town, village, cor- 
poration or person, costs awarded against the plaintiff shall 
be a charge against the party for whoso benefit the action 
was prosecuted, and not against the State. 

<>290.— Costs against assignee after action brcngbi, of caase of action. 

In actions in which the cause of action shall by assign- 
ment after the commencement of the action, or in any other 
manner, become the property of a person not a party to the 
action, such person shall be liable for the costs, in the same 
manner as if he were a party, and payment thereof may be 
enforced bv attachment. 



112 THE CODE OF 

§291.— -Costs on a .settlement. 

Upon the settlement, before judgmeut of any action men- 
tioned in section two hundred and seventy-six, no greater 
sum shall be demanded from the defendant as costs than at 
the rates prescribed by that section. 

§292.— Costs on appeals. 

On an appeal from a Justice of the Peace, to a Superior 
Court, or from a Superior Court or a Judge thereof, to the 
Supreme Court, if the appellant shall recover judgment in 
the appellate court, he shall recover the costs of the appel- 
late court, and those he ought to have recovered below, had 
the judgment of that court been correct, and also restitution 
of any costs of the court appealed from, which he shall have 
paid under the erroneous judgment of such court. 

If in any court of appeal there shall be judgment for a 
new trial, or for a new jury, or if the judgment appealed 
from, be not wholly reversed, but partly affirmed and partly 
disaffirmed, the costs shall be in the discretion of the appel- 
late court. 

§293. — Costs in existing actions. 

Costs in actions brought before the ratification of this 
Act, shall be according to existing laws. 

§29i.— Costs in special proceedings. 

The costs in special proceedings shall be as herein allowed 
in civil actions, unless where otherwise specially provided. 

§29.3. — On appeals from Justices of the Peace. 

After an appeal from the judgment of a Justice of the 
Peace shall be filed with a Clerk of a Superior Court, the 
costs in all subsequent stages shall be, as herein provided 
for actions originally brought to the Superior Court, 



CIVIL PROCEDURE. 113 

TITLE XIII . 

OF APPEALL IN CIVIL ACTIONS. 

CHAPTER 1. 

^2!>ti.— Writs of error abolished, and appeals substituted. 

Writs of error in civil actions, as they have heretofore 
existed, are abolished ; and the only mode of reviewing a 
judgment, or order, in a civil action, shall be that prescribed 
by this title. 

The provisions of this title shall apply to all actions tried 
after the Fall Terms of the Superior Courts, held next after 
the ratification of this Act. The existing laws shall govern 
trials and appeals in said Courts at said Fall Terms. 

<)29T. — Orders made ont of Court, how vacated or modified. 

An order, made out of court, without notice to the adverse 
party, may be vacated or modified, without notice, by the 
Judge who made it, or may be vacated or modified on notice, 
in the manner in which other motions are made . 

§298 — Existing suits — who may appeal. 

Any party aggrieved may appeal in the cases prescribed in 
this title ; this section shall apply to existing suits. 

i;2i)9. — Appeal — iu what cases it may be taken. 

An appeal may be taken from every judicial order or 
determination of a Judge of a Superior Court, upon or 
involving a matter of law or legal inference, whether made 
in or out of term, which affects a substantial right claimed in 
any action or proceeding; or which in effect determines the 
action, and prevents a judgment from which an appeal 
might be taken; or discontinues the action, or grants or 
refuses a new trial, 
8 



114 THE CODE OF 

§300. — When taken— execution not suspended, when. 

The appeal must be taken from a judgment rendered out 
of term, within ten days after notice thereof, and from a 
judgment rendered in term, within ten days after its rendi- 
tion, but execution shall not be suspended until the giving 
by the appellant of the undertakings hereinafter required by 
sections three hundred and three, to three hundred and 
twelve, both inclusive of this Code. 

$301.— Appeal to be entered by clerk on judgment docket. Case how stated and 
settled. 

Within the time prescribed in the preceding section, the 
appellant shall cause his appeal to be entered by the clerk on 
the judgment docket, and notice thereof to be given to the 
adverse party. He shall cause to be prepared a concise 
statement of the case, embodying the instructions of the 
Judge as signed by him, if there be any exception thereto,, 
and the requests of the counsel of the parties for instructions 
if there be any exception on account of the granting or with- 
holding thereof, and stating separately in articles numbered, 
the errors alleged. A copy of this statement shall be 
served on the respondent as provided in section eighty, 
within five days from the entry of the appeal taken ; within 
three days after such service, the respondent shall return 
the copy with his approval or specific amendments endorsed 
or attached; if the case be approved by the respondent, it 
shall be filed with the clerk as a part of the record; if not 
returned with objections within the time prescribed, it shall 
be deemed approved ; if returned with objections as pre- 
scribed, the appellant shall immediately request the Judge 
to fix a time and place for settling the case before him ; and 
the Judge shall forthwith notify the attorneys of the parties 
to appear before him for that purpose at a certain time and 
place, within the judicial district, which time shall not be 
more than twenty days from the receipt of such request ; 
and at the time and place stated, the Judge shall settle and 
sign the case, and deliver a copy to the attorney of each 
party, or if they be not present, file a copy in the office of j 



CIVIL PROCEDURE. 115 

the clerk of the court. In settling the case, the written 
instructions signed by the Judge, and the written requests 
for instructions signed by the counsel, and filed as prescribed 
in sections two hundred and thirty-eight and two hundred 
and thirty-nine, shall be taken as conclusive as to what 
such instructions and requests were. If a copj 1 - of the case 
settled, was delivered to the appellant, he shall within five 
days thereafter, file the same with the clerk, and in case he 
fail to do so, the respondent may file his copy. 

<j302.— Clerk to make copy of judgment red and send to Clerk of Supreme 
Court. 

The clerk on receiving a copy of the case settled, as 
required in the preceding section, shall make a copy of the 
judgment roll and of the case, and within twenty days, 
transmit the same, duly certified, to the clerk of the Supreme 
Court. 

(yi():l, — On appeal, security most be given or deposit made, unless waived. 

To render an appeal effectual for any purpose, a written 
undertaking must be executed on the part of the appellant 
by at least two sureties, to the effect that the appellant will 
pay all costs and damages which may be awarded against 
him on the appeal, not exceeding five hundred dollars, or 
that sum must be deposited with the clerk with whom the 
judgment or order was entered, to abide the event of the 
appeal. Such undertaking or deposit may be waived by a 
written consent on the part of the respondent. 

V)30i.— Exiting suits — On judgment for money, security to stay execution — 
Mew undertaking, on snreties iu first becoming insolvent. 

It the appeal be from a judgment directing the payment 
of money, it shall not stay the execution of the judgment, 
unless a written undertaking be executed on the part of the 
appellant, by at least two sureties, to the effect that, if the 
judgment appealed from, or any part thereof, be affirmed, or 
the appeal be dissmissed, the appellant will pay the amount 
directed to be paid by the judgment, or the part of such 



116 THE CODE OF 

amount as to which the judgment shall be affirmed, if it Le 
affirmed only in part, and all damages which shall be 
awarded against the appellant upon the appeal. Whenever 
it shall be made satisfactorily to appear to the court that since 
the execution of the undertaking the sureties have become 
insolvent, the court may, by rule or order, require the appel- 
lant to execute, file and serve a new undertaking as above; 
and in case of neglect to execute such undertaking within 
twenty days after the service of a copy of the rule or order 
requiring such new undertaking, the appeal may, on motion 
to the court, be dismissed with costs. Whenever it shall be 
nec'essary for a party to any action or proceeding to give a 
bond or an undertaking, with surety or sureties, he may, in 
lieu thereof, deposit with the officer or into court, as the 
case may require, money to the amount for which such bond 
or undertaking is to be given. The court in which such 
action or proceeding is pending may direct what disposition 
shall be made of such money, pending the action or pro- 
ceedings In any case where, by this section, the money is 
to be deposited with an officer, a judge of the court, at 
special term, or at chambers, upon the application of either 
party, may, before such deposit is made, order it to be 
deposited in court instead of with such officer; and a deposit 
made, pursuant to such order, shall be of the same effect as 
if made with such officer, 

g3©5.— Existing suits — If jndgmeut bo to deliver document or personal pros- 
perty, it must be deposited, or security be given. 

If the judgment appealed from direct the assignment or 
delivery of documents or personal property, the execution 
of the judgment shall not be stayed by appeal, unless the 
things required to be assigned or delivered be brought into 
court, or placed in the custody of such officer or receiver as 
the court shall appoint, or unless an undertaking be entered 
into on the part of the appellant, by at least two sureties, 
and in such amount as the court, or a Judge thereof, 
shall direct, to the effect that the appellant will obey the 
order ot the appellate court upon the appeal. 






CIVIL PROCEDURE. 117 

^306. — Existing suits— If to execute conveyance, it must be executed and 
deposited. 

If the judgment appealed from direct the execution ot a 
conveyance or other instrument, the execution of the judg- 
ment shall not be stayed by the appeal until the instrument 
shall have been executed and deposited with the clerk with 
whom the judgment is entered, to abide the judgment of the 
appellate court. 

(3307.— Existing suits — Security where jndgmeat is to deliver real propertj 
or for a sale of mortgaged premises* 

If the judgment appealed from direct the sale or delivery 
of possession of real property, the execution of the same shall 
not be stayed, unless a written undertaking be executed on 
the part of the appellant, with two sureties, to the effect tl at, 
during the possession of such property by the appellant, he 
will not commit, or suffer to be comitted, any waste thereon, 
and that if the judgment be affirmed, he will pay the value 
of the use and occupation of the property, from the time ot 
the appeal until the delivery of possession thereof, pursuant 
to the judgment, not exceeding a sum to be fixed by a Judge 
of the court by which judgmet was rendered, and which 
shall be specified in the undertaking. When the judgment 
is for the sale of mortgaged premises, and the payment of a 
deficiency arising upon the sale, the undertaking shall also 
provide for the payment of such deficiency. 

<)308. — Existing suits— Stay of proceedings nj>cu scenritj being givea. 

Whenever an appeal is perfected as provided by sections 
three hundred andfour, three hundred and five, three hundred 
and six, and three hundred and seven, it stays all further 
proceedings in the court below upon the judgment appealed 
from, or upon the matter embraced therein; but the court 
below may proceed upon any other matter included in the 
actfon and not affected by the judgment appealed from. And 
the court below may, in its discretion, dispense witli or limit 
the security required by sections three hundred and four 
three hundred and five, and three hundred and seven, when t lie 



118 THE CODE OF 

appellant is an executor, administrator, trustee, or other 
person acting in another's right; and may also limit such 
security to an amount not more than fifty thousand dollars, in 
the cases mentioned in sections three hundred and five, 
three hundred and six, three hundred and seven, where it 
would otherwise, according to those sections, exceed that 
sum. 

gS$(MN— Existing snits— IndiM -takings may be in one instrnment or several- 

The undertakings prescribed by sections three hundred 
and four, three hundred and five, three hundred and six, and 
three hundred and seven, may bein one instrument or several, 
at the option of the appellant; and a copy, including, the 
names and residence of the sureties, must be served on the 
adverse party, with the notice of appeal, unless a deposit is 
made as provided in section three hundred and four, and 
notice thereof given. 

V)310.— Existing suits— Security to be approved and to justify. 

An undertaking upon an appeal shall be of no effect, 
unless it be accompanied by the affidavit of the sureties 
that they are each worth double the amount specified 
therein. The respondent may, however, except to the suffi- 
ciency of the sureties, within ten clays after the notice of 
the appeal; and unless they or other sureties justify before 
the Judge or court below, or as prescribed by sections one 
hundred and sixty-five and one hundred and sixty-six, within 
• ten days thereafter, the appeal shall be regarded as if no 
undertaking had been given. The justification shall be upon 
a notice of not less than five days. 

<)3 11.— Existing suits— Perishable property may be sold notwithstanding appeal- 
In the cases not provided for in sections three hundred, and 
five, three hundred and six, three hundred and seven, and 
three hundred and eight, the perfecting of an appeal, by 
giving the undertaking mentioned in section three hundred 
and four, shall stay proceedings in the court below upon 
the judgment appealed from, except that where it directs 



CIVIL PROCEDURE. 119 

the sale of perishable property, the court below may order 
the property to be sold, and the proceeds thereof, to be 
deposited or invested, to abide the judgment of the appellate 
court 

j312. — Existing suits— Undertaking must be filed. 

The undertaking must be filed with the clerk with whom 
the judgment or order appealed from was entered. The 
provisions of this chapter as to the security to be giveu 
upon appeals, and as to the stay of proceedings, shall apply 
to all appeals taken to the Supreme Court. 

^ 313. — Existing suits — Intermediate orders affeeting the judgment may be 
reviewed on the appeal. 

Upon an appeal from a judgment, the court may review 
any intermediate order involving the merits and necessarily 
affecting the judgment. 

$311.-— Existing suits— Judgment on appeal— Restitution. 

Upon an appeal from a judgment or order, the appellate 
court may reverse, affirm or modify the judgment or order 
appealed from, in the respect mentioned in the notice of 
appeal, and as to any or all of the parties, and may, if 
necesssary or proper, order a new trial. When the judgment 
is reversed or modified, the appellate court may make com- 
plete restitution of all property and rights lost by the erro- 
neous judgment. 

The foregoing sections, from section three hundred and 
four, to section three hundred and fourten, both inclusive 
shall apply to existing suits. 






120 THE CODE OF 

TITLE XIY. 

OF TEE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS, AND GENERAL 

PROVISIONS. 

CHAPTER I. 



SUBMITTING A CONTROVERSY WITHOUT ACTION. 

§215.— Controversy, how mi limit ted without action. 

Parties to a question in difference, which might be the 
subject of a civil action, may, without action, agree upon a 
case containing the facts upon which the controversy 
depends, and present a submission of the same to any court 
which would have jurisdiction if an action had been brought. 
But it must appear by affidavit that the controversy is real, 
and the proceeding in good faith, to determine the rights 
of the parties. The Judge shall thereupon hear and deter- 
mine the case, and render judgment thereon, as if an action 
were depending. 

§316« — Judgment. 

Judgment shall be entered in the Judgment Docket, as in 
other cases, but without costs for any proceeding prior to 
trial. The case, the submission, and a copy of the judg- 
ment shall constitute the judgment-roll. The costs of the 
trial shall be five dollars. 

§317. — Judgment, how enforced or appealed from. ^m^ 

The judgment may be enforced in the same monncr^^P^ 
it had been rendered in an action, and shall be subject to 
appeal in like manner. 



CIVIL PROCEDURE. 121 



CHAPTER II. 

PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DEVISEES, LEGATEES, 
AND TENANTS HOLDING UNDER A JUDGMENT DEBTOR. 

<j:J18. — Parties not summoned in action on joint contract, may be summoned 
after judgment. 

When a judgment shall be recovered against one or more 
of several persons jointly indebted upon a contract, by pro- 
ceeding as provided in section eighty-seven, those who were 
not originally summoned to answer the complaint may be 
summoned to show cause why they should not be bound by 
the judgment, in the same manner as if they had been origi- 
nally summoned. 

§311). — If judgment debtor die, his representatives may be summoned. 

In case of the death of the judgment debtor after judg- 
ment, the heirs, devisees, or legatees of the judgment debtor, 
or the. tenants of real property owned by him and affected 
by the judgment, may, after the expiration of three years, 
from the time of granting letters testamentary or of admin- 
istration upon the estate of the testator or intestate, be 
summoned to show cause why the judgment should not be 
enforced against the estate of the judgment debtor in their 
hands respectively; and the personal representatives of a 
deceased judgment debtor may be so summoned at any time 
within one year after their appointment. The personal 
representative of a deceased judgment debtor, if there be 
any, shall always be parties to any summons against his. 
heirs, devisees, legatees or tenants, to enforce the judgment. 

£320.— form of snmmons. 

The summons provided in the last section shall be signed 
by the clerk of any court in which the judgment was dock- 
eted before the death of the debtor, and in which he had 
property affected thereby, but shall be made returnable to 
the court in which the judgment was recovered; it shall 



122 THE CODE OF 

describe the judgment, and require the person summoned to 
show cause within twenty days after the service of the sum- 
mons; and shall be served in like manner as the original 
summons. 

£321. — To be accompanied by affidavit of amount dne. 

The summons shall be accompanied by an affidavit of the 
person causing it to issue, that the judgment has not been 
satisfied, to his knowledge or information and belief, and 
shall specify the amount due thereon. 

§322. — Party summoned may answer and defend. 

Upon such summons any party summoned may answer 
within the time specified therein, denying the judgment, or 
setting up any defence thereto which may have arisen sub- 
sequently to such judgment; and in addition thereto, if the 
party be proceeded against according to section three hun-. 
dred and eighteen, he may make any defence which he might 
have made to the action if the summons had been served on 
him at the time when the same was originally commenced 
and such defence had been then interposed to such action. 

S323.— Subseqnent pleadings and proceedings same as in action. 

The party issuing the summons may demur or reply to 
the answer, and the party summoned may demur to the 
reply; and the issues may be tried and judgment may be 
given in the same manner as in an action, and enforced by 
execution, or the application of the property charged to the 
payment of the judgment may be compelled by attachment, 
if necessary. 

§324. — Answer and reply to be verified as in an action. 

The answer and reply shall be verified in the like cases 
and manner, and be subject to the same rules, as the answer 
and reply in an action. 



CIVIL PROCEDURE. 123 

CHAPTER III. 

CONFESSION OF JUDGMENT WITHOUT ACTION. 

§325j — Judgment may be confessed for debt dae or contingent liability^ 

A judgment by confession may be entered, without action, 
either in «*r out of term, either for money due or to become 
due, or to secure any person against contingent liability on 
behalf of the defendant, or both, in the manner prescribed 
by this chapter. 

<;326.— Statement in writing and form thereof. 

A statement in writing must be made, signed by the 
defendant, and verified by his oath, to the following effect: 

1. It must state the amount for which judgment may be 
entered, and authorize the entry of judgment therefor. 

2. It it be for money due, or to become due, it must state 
concisely the facts out ot which it arose, and must show 
that the sum confessed therefor, is justly due, or to become 
due. 

3. If it be for the purpose of securing the plaintiff against 
a contingent liability, it must state concisely the facts con- 
stituting the liability, and must show that the sum confessed 
therefor does not exceed the same. 

g32T. — Jndgmcnt and exetntion. 

The statement may be filed with the clerk of the Superior 
Court of the county in which the defendant resides, or if 
he does not reside in the State, of some county in which he 
has property. The clerk shall endorse upon it, and enter 
on his judgment docket, a judgment of the court, for the 
amount confessed, with three dollars costs, together with 
disbursements. The statement and affidavit, w r ith the judg- 
ment endorsed, shall thenceforth become the judgment-roll. 
Executions may be issued and enforced thereon, in the same 
manner as upon judgments in other cases in such courts. 
When the debt for which the judgment is recovered, .is not 



124 THE CODE OE 

all due, or is payable in installments, and the installments 
are not all due, the execution may issue upon such judg- 
ment for the collection of such installments as have become 
due, and shall be in the usual form, but shall have endorsed 
thereon, by the attorney or person issuing the same, a direc- 
tion to the sheriff to collect the amount due on such judg- 
ment, with interest and costs, which amount shall be stated, 
with interest thereon, and the costs of said judgment Not- 
withstanding the issue and collection of such execution, 
the judgment shall remain as security for the installments 
thereafter to become due; and whenever any further install- 
ments become due execution may, in like manner, be issued 
for the collection and enforcement of the same. 



CHAPTER IV. 

OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A TART OF 

THE ACTION. 

£328.— Offer of compromise. 

The defendant may, at any time before the trial or verdict, 
serve upon the plaintiff an offer in writing to allow judg- 
ment to be taken against him for the sum or property, or to 
the effect therein specified, with costs. If the plaintiff 
accept the offer, and give notice thereof in writing within 
ten days, he may file the summons, complaint, and offer, 
with an affidavit of notice of acceptance, and the clerk must 
thereupon enter judgment accordingly. If the notice of 
acceptance be not given, the offer is to be deemed with- 
drawn, and cannot be given in evidence; and if the plaintiff 
fail to obtain a more favorable judgment he cannot recover 
costs, but must pay the defendant's costs from the time of 
the offer; and in case the defendant shall set up a counter- 
claim in his answer to an amount greater than the plaintiff's 
claim, or sufficient to reduce the plaintiff's recovery below 
fifty dollars, then the plaintiff may serve upon the defendant 



CIVIL PROCEDURE. 125 

an offer in writing-, to allow judgment to be taken against him 
for the amount specified, or to allow said counter-claim to 
the amount specified with costs. If the defendant accept 
the offer, and give notice thereof in writing within ten days, 
he may enter judgment as above for the amount specified, if 
the offer entitle him to judgment, or the amount specified 
in said offer shall be allowed him in the trial of the action. 
If the notice of acceptance be not given, the offer is to be 
deemed withdrawn, and cannot be given in evidence; and 
if the defendant fail to recover a more favorable judgment, 
or to establish his counter-claim for a greater amount than 
is specified in said offer, he cannot recover costs, but must 
pay the plaintiff's costs from the time of the offer. 

%il% — Defcudaut may offer to liquidate damages conditionally* 

In an action arising on contract, the defendant may, with 
his answer, serve upon the plaintiff an offer in writing, that 
if he fail in his defence, the damages be assessed at a speci- 
fied sum; and if the plaintiff signify his acceptance thereof 
in writing, twenty days before the trial, and on the trial have 
a verdict, the damages shall be assessed accordingly. 

.^330.— Effect of acceptance or refusal of offer. 

If the plaintiff do not accept the offer, he shall prove his 
damages, as if it had not been made, and shall not be per- 
mitted to give it in evidence. And if the damages assessed 
in his favor shall not exceed the sum mentioned in the offer, 
the defendant shall recover his expenses incurred in conse- 
quence of any necessary preparation or defence in respect 
to the question of damages. Such expense shall be ascer- 
tained at the trial. 



126 THE CODE OF 

CHAPTER V. 

ADMISSION OR INSPECTION OF WRITINGS. 

§331. — Existing suits. Inspection and copy of books, papers, and documents, 
Iiow obtained. 

Either party may exhibit to the other, or to his attorney 
at any time before the trial, any paper material to the action, 
and request an admission in writing of its genuineness. If 
the adverse party, or his attorney, fail to give the admission, 
within lour days after the request, and if the party exhibit- 
ing the paper be afterwards put to expense in order to prove 
its genuineness, and the same be finally proved or admitted 
on the trial, such expense to be ascertained at t^ie trial, 
shall be paid by the party refusing the admission, unless it 
appear to the satisfaction of the court that there were good 
reasons for the refusal. The court before which an action 
is pending, or a Judge thereof, may, in their discretion, and 
upon due notice, order either , party to give to the other, 
within a specified time, an inspection and copy, or permis- 
sion to take a copy, of any books, papers, and documents, 
in his possession or under his control, containing evidence 
relating to the merits of the action or the defence therein. 
If compliance with the order be refused, the court, on motion, 
may exclude the paper from being given in evidence, or 
punish the party refusing, or both. This section shall apply 
to existing suits. 



CHAPTER VI. 



EXAMINATION OF PARTIES. 



sj332* — Aftion lor discovery abolished. 

No action to obtain discovery under oath, in aid of the 
prosecution or defence of another action, shall be allowed, 



CIVIL PROCEDURE. 127 

nor shall any exomination of a party be had, on behalf of 
the adverse party, except in the manner prescribed by this 
chapter. 

£333.— Existihg suits— A party may examine his adversary as a witness. 

A party to an action may be examined as a witness, at the 
instance of the adverse party, or of any one of several adverse 
parties, and for that purpose may be compelled, in the same 
manner, and subject to the same rules of examination, as any 
other witness, to testify, either at the trial, or conditionally, 
or upon commission. 

§334. — Existing suits— Such examination also allowed before trial — Proceed- 
ings therefor. 

The examination, instead of being had at the trial, as 
provided in the last section, may be had at any time before 
the trial, at the option of the party claiming it, before a 
Judge or clerk of the court, on a previous notice to the 
party to be examined, and any other adverse party, of at 
least five days, unless, for good cause shown, the Judge order 
otherwise. But the party to be examined shall not be com- 
pelled to attend in another county than that of his residence, 
or where he may be served with a summons for his 
attendance. 

£335. — Existing suits — Party, how compelled to attend. 

The party to be examined, as in the last section provided, 
may be compelled to attend in the same manner as a witness 
xvho is to be examined conditionally ; and the examination 
shall be taken and filed by the Judge or clerk in like manner, 
and may be read by either party on the trial. 

£ 336.— Existing suits— Testimony of party may be rebutted. 

The examination of the party thus taken, may be rebutted 
by adverse testimony. 



129 THE CODE OF 

£337 — Existing suits— Effect of refusal to testify. 

If a party refuse to attend and testify, as in the last four 
sections provided, he may be punished as for a contempt, and 
his complaint, answer, or reply may be stricken out. 

£33S.— Existing suits— Testimony by a party not responsive to the inquiries, 
may be rebutted by the oath of the party calling him. 

A party examined by an adverse party, as in this chapter 
provided, may be examined on his own behalf, subject to the 
same rules of examination as other witnesses. But if he 
testify to any new matter, not responsive to the inquiries 
put to him by the adverse party, or necessary to explain or 
qualify his answers thereto, or discharge when his answers 
would charge himself, such adverse party may offer himself 
as a witness on his own behalf in respect to such new matter, 
subject to the same rules of examination as other witnesses, 
and shall be so received. 

£339.— Existing suits — Persons for whom action is bronght or defended may 
be examined. 

A person for whose immediate benefit the action is pros- 
ecuted or defended, though not a party to the action, may 
be examined as a witness, in the same manner, and subject 
to the same rules of examination, as if he were named as a 
party. 

<J)310. — Existing suits — Examination of co-plaintiff or co-defendant. 

A party may be examined on behalf of his co-plaintiff or 
of a co-defendant as to any matter in which he is not jointly 
interested or liable with such co-plaintiff or co-defendant, 
and as to which a separate and not joint verdict or judgment 
can be rendered. And he may be compelled to attend in 
the same manner as at the instance of an adverse party; 
but the examination thus taken shall not be used in the 
behalf of the party examined. And whenever, in the case 
mentioned in sections three hundred and ninety and three 
hundred and ninety-one, one of several plaintiffs or defen- 
dants who are joint contractors; or are united in interest, is 



CIVIL PROCEDURE. 129 

examined by the adverse party, the other of such, plaintiffs 
or defendants may oifer himself as a witness to the same 
cause of action or defence, and shall be so received. 

1)311. — Hnsband and wife, witnesses. 

In any trial or inquiry in any suit, action or proceeding in 
any court, or before any person having, by law or consent 
of parties, authority to examine witnesses or hear evidence, 
the husband or wife of any. party thereto, or of any person 
in whose behalf any such suit, action or proceeding is 
brought, prosecuted, opposed or defended, shall, except as 
hereinafter stated, be competent and compellable to give 
evidence, the same as any other witness, on behalf of any 
party to such suit, action or proceeding. Nothing herein 
contained shall render any husband or wife competent or 
compellable to give evidence for or against the other, in any 
criminal action or proceeding (except to prove the fact of 
marriage in case of bigamy,) or in any action or proceeding 
in consequence of adultery, or in any action or proceeding 
for divorce on account of adultery (except to prove the fact 
of marriage,) or in any action or proceeding for or on account 
of criminal conversation. No husband or wife shall be com- 
pellable to disclose any confidential communication made by 
one to the other during their marriage. The several sections 
of this chapter shall apply to existing suits. 



CHAPTER VII. 

EXAMINATION OF WITNESSES. 

§312.— Existing snits— Interest not to exclude a witness. 

No person'offered as a witness shall be excluded by reason 
of his interest in the event of the action. 

§34Si — Existing suits— Parties to actions and special proceedings may be ex- 
amined as witnesses on their own behalf, except in certain cases. 

A party to an action or special proceeding in any and all 

courts and before any and all officers and persons acting 
9 



130 THE CODE OF 

judicially, may be examined as a witness on his own behalf, 
or in behalf of any other party, conditionally, on commission 
and upon the trial or hearing in the case, in the same 
manner and subject to the same rules of examination as any 
other witness; provided, however, that no party to the action 
or proceeding, nor any person who has a legal or equitable 
interest which may be affected by the event of the action or 
proceeding, nor any person who, previous to such examina- 
tion, has had such an interest, -however the same may have 
been transferred to or come to the party to the action or 
proceeding, nor any assignor of anything in controversy in 
the action, shall be examined in regard to any transaction 
or communication between such witness and a person at the 
time of such examination deceased, insane or lunatic, as a 
wutness against a party then prosecuting or defending the 
action as executor, administrator, heir-at-law, next-of-kin 
assignee, legatee, devisee, or survivor of such deceased 
person, or as assignee or committee of such insane person or 
lunatic, when such examination or any judgment or deter- 
mination in such action or proceeding, can in any manner 
affect the interest of such witness or the interest previously 
owned or represented by him. But wdien such executor, 
administrator, heir-at-law, next-of-kin, assignee, legatee, 
devisee, survivor or committee, shall be examined on his own 
behalf in regard to such transaction or communication or 
the testimony of such deceased or insane person or lunatic 
in regard to such transaction or communication (however 
the same may have been perpetuated or made competent,) 
shall be given in evidence on the trial or hearing on behalf 
of such executor, administrator, heir-at-law, next-ol-kin, 
assignee, legatee, devisee, survivor or committee, then all 
other persons not otherwise rendered incomptent shall be 
made competent witnesses in relation to such transaction or 
communication on said trial or hearing. The sections of 
this chapter shall apply to existing suits. 



CIVIL PROCEDURE. 131 

CHAPTER VIII. 

MOTIONS AND ORDERS. 

§314*— Definition of an order. 

Every direction of a court or Judge, made or entered in 
writing, and not included in a judgment, is denominated an 
order. 

§845. — Definition of h motion. Motions how and where made. Stay of pro- 
ceedings. Coinpei^ug parties to testify. Decision on motion* 

1. An application for an order is a motion. 

2. Motions may be made to the Clerk of a Superior Court, 
or to a Judge out of court, except for a new trial on the 
merits. 

3. Motions must be made within the district in which the' 
action is triable. 

4. A motion to vacate or modify a provisional remedy, 
and an appeal from an order allowing a provisional remedy, 
shall have preference over all other motions. 

5. No order to stay proceedings for a longer time than 
twenty days shall be granted by a Judge out of court, except 
upon previous notice to the adverse party. 

6. When any party intends to make or oppose a motion 
in any court of record, and it shall be necessary for him to 
have the affidavit of any person who shall have refused to 
make the same, such court may, by order, appoint a referee 
to take the affidavit or deposition of such person. Such 
person may be subpoenaed and compelled to attend and 
make an affidavit before such referee, the same as before a 
referee to whom it is referred to try an issue. And the fees 
of such referee for such service shall be three dollars per 
day. 

7. Whenever a motion shall be made in any cause or pro- 
ceeding in any of the courts of this State, to obtain an 
injunction order, order of arrest, or warrant of attachment, 
granted in any such case or proceeding, it shall be the duty 



132 THE CODE OF 

of the Judge before whom such action motion is made, to- 
render and make known his decision on such motion within 
ten days after the day upon which such motion shall or may 
be submitted to him for decision. 

§346. — Notice on motion. 

When a notice of a motion is necessary, it must be served 
eight days before the time appointed for the hearing; but 
the court or Judge may, by an order to show cause, prescribe 
a shorter time. 



CHAPTER IX. 



ENTITLING AFFIDAVITS. 



()'H7. — FAistiug suits. Affidavits defectively entitled, valid. 

It shall not be necessary, to entitle an affidavit in the 
action, but an affidavit made without a title, or with a defec- 
tive title, shall be as valid and effectual, for every purpose, 
as if it were duly entitled, if it intelligibly refer to the action 
or proceeding in which it is made. 



CHAPTER X. 



COMPUTATION OF TIME. 



§348. — Time, how computed. 

The time within which an act is to be done, as herein 
provided, shall be computed by excluding the first day, and 
including the last. It the last day be Sunday, it shall be 
excluded. 



CIVIL PROCEDURE. 133 

CHAPTER XI. 

NOTICES AND FILING AND SERVICE, OF PAPERS. 

§:$49.— Existing suits— Notices, &c, how served— Subpoenas for witnesses. 

Notices shall be in writing ; notices and other papers may 
be served on the party or his attorney personally, or in the 
manner prescribed in section eighty, where not otherwise 
provided in this act. 

1. If upon an attorney, service may be made during his 
absence from his office, by leaving the paper with his clerk 
therein, or with a person having charge thereof; or, when 
there is no person in the office, by leaving it, between the 
hours of six in the morning and nine in the eveuing, in a 
conspicuous place in the office ; or, if it be not open so as to 
admit of such service, then by leaving it at the attorney's 
residence, with some person of suitable age and discretion. 

2. If upon a party, it may be made by leaving the paper 
at his residence, between the hours of six in the morning 
and nine in the evening, with some person of suitable age 
and discretion. 

3. Service of a subpoena for witnesses may be made by a 
sheriff, coroner or constable, and proved by the return of 
such officer; or the service may be made by any person not 
a party to the action, and proved by his oath. 

A subpoena for witnesses need not be signed by the clerk 
of the court, it shall be sufficient if subscribed by the party 
or his attorney. 

§350.— Existing suits — Service by mail. 

Service by mail may be made where the person making 
the service and the person on whom it is to be made reside 
in -different places, between which there is regular com- 
munication by mail. But service by mail shall not be good 
on an}- party living more than one mile from the post office 
to which it is addressed. 



134 THE CODE OF 

§351.— Existing suits— Service by mail. 

In case of service by "mail, the paper must be deposited in 
the post office, addressed to the person on whom it is to be 
served, at his place of residence, and the postage paid. 

V)352. — Existing suits — Double time when served by mail. 

Where the service is by mail, it shall be double the time 
required for a letter to reach the party to whom it is addressed 
by ihe ordinary usage of the mail. 

§353.— Existing suits— When this chapter does not apply. 

The provisions of this chapter shall not apply to the 
service of a summons, or other process, or of any paper to 
bring a party into contempt. The several sections of this 
chapter shall apply to existing suits. 



CHAPTER XII. 

DUTIES OF SHERIFFS AND CORONERS. 

$354.— Duty of sheriff and coroner in serving or execnting process, and how 
enforced— may return process by mail. 

Whenever, pursuant to this act, the sheriff may be required 
to serve or execute any summons, order or judgment, or to 
do any other act, he shall be bound to do so in like manner 
as upon process issued to him, and shall be equally liable in 
all respects for neglect of duty; and if the sheriff be a party. 
the coroner shall be bound to perform the service, as he is 
now bound to execute process where the sheriff is a party ; 
and all the provisions of this act relating to sheriffs shall 
apply to coroners when the sheriff is a party. Sheriffs and 
coroners may return process by mail. Their liabilities in 
respect to the execution of process shall be as now prescribed 
by law. 



CIVIL PROCEDURE. 135 

CHAPTER X-III. 

ACCOUNTABILITY OF GUARDIANS. 

§355.— Guardian not to receive property nntil security giveu. 

Xo guardian appointed for an infant shall be permitted 
to receive property of the infant, until he shall have given 
sufficient security, approved by a Judge, or the court to 
account for and apply the same under the direction of the 
court. ' 



CHAPTER XIV. 



TOWERS OF REFEREES. 



£356. — Powers of referees. 

Every referee appointed pursuant to this act shall have 
power to administer paths in any proceeding beiore him, 
and shall have generally the powers now vested in a referee 
by law. 



CHAPTER XV. 



HISC ELLANEOUS PROVISIONS. 



£357.— Papers lost or withheld, how supplied. 

If an original pleading or paper be lost or withheld by 
any person, the court may authorize a copy thereof to be 
filed and used instead of the original. 

£358. — Where undertakings to be filed. 

The various undertakings required to be given by this 
Act must be filed with the clerk of the court, unless the 



136 THE CODE OF 

court expressly provides for a different disposition thereof, 
except that the undertakings provided for by the chapter 
on the claim and delivery of personal property, shall, after 
the justification of the sureties, be delivered by the sheriff 
to the parties respectively, for whose benefit they are taken. 

^$59.— Time for publication of notices, how computed. 

The time for publication of legal notices shall be compu- 
puted so as to exclude the first day of publication and include 
the day on which the act or event, of which notice is given, 
is to happen, or which completes the full period required Re- 
publication. 

.£360. — Laws of other States and governments, how proved. 

Printed copies in volumes of statutes, code, or other writ- 
ten law, enacted by any other State or territory, or foreign 
government, purporting or proved to have been published 
by the authority thereof, or proved to be commonly admit- 
ted as evidence of the existing law in the courts and judi- 
cial tribunals of such State, Territory, or government, shall 
he admitted by the courts and officers of this State, on all 
occasions, as presumptive evidence of such laws. The 
unwritten or common law of any State or Territory, or for- 
eign government, may be proved as facts by parol evidence; 
and the books of reports ot cases adjudged in their courts, 
may also be admitted as presumptive evidence of such law. 



CIVIL PROCEDURE. 137 

TITLE XV. 

ACTIONS IN PARTICULAR CASES. 

Chapter I. Actions against foreign corporations. 

« H. Actions in place of scire facias, quo warranto, and of in formations 

in the natnre of a qno warranto. 
" III. Actions for the partition of real property. 
*' IV. Actions to determine claims, for waste and nuisance. 
<» V. General provisions relating to actions concerning real property. 

CHAPTER I. 

ACTIONS FOR FOREIGN CORPORATIONS. 

3361.— Where and by whom brought- 

An action against a corporation created by, or under the 
laws of any other State, government, or country, may be 
brought in the Superior Court of any county in which the 
cause of action arose, or in which it usually did business, or 
in which it has property, in the following cases: 

1. By a resident of this State, for any cause of action. 

2. By a plaintiff, not a resident of this State, when the 
cause of action shall have risen, or the subject of the action 
shall be situated, within this State. 



CHAPTER II. 

.ACTIONS IN PLACE OF SCIRE FACIAS, QUO WARRANTO, AND OF INFOR- 
MATIONS IN THE NATURE OF QUO WARRANTO. 

$302.— Scire facias and quo warranto abolished, and this chapter substituted. 

The writ of scire facias, the writ of quo warranto, and 
proceedings by information in the nature of quo ivarrcmtc, 
are abolished; and the remedies heretofore obtainable in 



138 • THE CODE OF 

those forms may be obtained by civil actions under the pro- 
visions of this chapter. [But any proceedings heretofore 
commenced, or judgment rendered, or right acquired, shall 
not be affected by such abolition. 

§363 — Action may be bicnght by ■ Attoiney-Cuieial to vacate a charter, by 
direction of the Legislature. 

An action may be brought by the Attorney-General, in the 
name of the State, whenever the Legislature shall so direct, 
against a corporation, for the purpose of vacating or annull- 
ing the act of incorporation, or an act renewing its corporate 
existence, on the ground that such act or renewal was pro- 
cured upon some fraudulent suggestion or concealment of a 
material fact, by the person incorporated, or by some of 
them, or with their knowledge and consent, 

<)'i&i. — Action to annul a corporation, when and how brought by' Attorney- 
Ceneral, by leave of Supreme Court. 

An action may be brought by the Attorney-General, in the 
name of the State, on leave granted by the Supreme Court 
or a Judge thereof, for the purpose of vacating the charter 
or annulling the existence oi a corporation, other than muni- 
cipal, whenever such corporation shall — 

1. Offend against any of the provisions of the act or acts- 
creating, altering, or renewing such corporation; or, 

2. Violate the provisions of any law by which such cor- 
poration shall have forfeited its charter by abuse of its pow- 
ers; or, 

3. Whenever it shall have forfeited its privileges or fran- 
chises by failure to exercise its powers; or, 

4. Whenever it shall have done or omitted any act which 
amounts to a surrender of its corporate rights, privileges and 
franchises; or, 

5. Whenever it shall exercise a franchi.se or privilege not 
conferred upon it by law. 



CIVIL PROCEDURE. 13J> 

And it shall be the duty of the Attorney-General, when- 
ever he shall have reason to believe that any of these acts 
or omissions can be established by proof, to apply for leave, 
and upon leave granted to bring the action, in every case 
of public interest, and also in every other ease in which sat- 
isfactory security shall be given to indemnify the State 
against the costs and expenses to be incurred there! >y. 

§365.— Leave how obtained. 

Leave to -bring the action may be granted upon the appli- 
cation of the Attorney-General; and the court or Judge 
may at discretion, direct notice of such application to be 
given to the corporation or its officers, previous to granting 
such leave, and may hear the corporation in opposition 
thereto. 

§366. — Action upon information or complaint, of eonrsc. 

An action may be brought by the Attorney-General in the 
name of the people of this State, upon his own information, 
or upon the complaint of any private party, against the 
parties offending in the following cases : 

1. When any person shall usurp, intrude into, or unlaw- 
fully hold or exercise any public office, civil or military, or 
any franchise within this State, or any office in a corporation 
created by the authority of this State, or, 

2. When any public officer, civil or military, shall have 
done or suffered an act which, by the provisions of law, 
shall make a forfeiture of his office; or 

3. When any association or number of persons shall act 
within this State as a corporation, without being duly incor- 
porated. 

§367. — Action when and how brought to vacate letters patent. 

An action may be brought by the Attorney-General, in 
the name of the State, for the purpose of vacating or annull- 
ing letters patent granted by the State, in the following 
cases : 



140 THE CODE OF 

1. When he shall have reason to believe that such letters 
patent were obtained by means of some fraudulent sugges- 
tion or concealment of a material fact, made by the person 
to whom the same were issued or made, or with his consent 
or knowledge; or 

2. When he shall have reason to believe that such letters 
patent were -issued through mistake, or in ignorance of a 
material fact; or 

3. When he shall have reason to believe that the patentee, 
or those claiming under him, have done or omitted an act, 
in violation of the terms and conditions on which the letters 
patent were granted, or have by any other means forfeited 
the interest acquired under the same. 

£3»i8.— Relator, when to be joined as plaintiff. 

When an action shall be brought by the Attorney-General, 
by virtue of this chapter, on the relation or information of a 
person having an interest in the question, the name of such 
person shall be joined with the State as plaintiff, and in 
every such case the Attorney-General may require as a con- 
dition for bringing such action, that satisfactory security 
shall be given to indemnify the State against the costs and 
expenses to be incurred thereby; and in every case where 
such security is given, the measure of the compensation to 
be paid by such person or persons to the Attorney-General, 
shall be left to the agreement of the parties express or 
implied. 

<j360. — Complaint, and arrest of defendant, in action for nsurping an office. 

Whenever such action shall be brought against a person 
for usurping an office, the Attorney-General, in addition to 
the statement ot the cause of action, may also set forth in 
the complaint the name of the person rightfully entitled to 
the office, with a statement of his right thereto ; and in such 
case, upon proof by affidavit that the defendant has received 
fees or emoluments belonging to the office, and by means of 
his usurpation thereof, an order may be granted by a Judge 
of the Supreme Court for the arrest of such defendant, and 



CIVIL PROCEDURE. 141 

holding him to bail ; and thereupon he shall be arrested and 
held to bail, in the manner, and with the same effect, and 
subject to the same rights and liabilities, as in other civil 
actions where the defendant is subject to arrest. 

§370. — Judgment in such actions. 

In every such case, judgment shall be rendered upon the 
right of the defendant, and also upon the right of the party 
so alleged to be entitled, or only upon the right of the defen- 
dant, as justice shall require. 

§371.— Assumption of office, &c, by relator, when judgment is in his favor. 

If the judgment be rendered upon the right of the person 
so alleged to be entitled, and the same be in favor of such 
person, he shall be entitled, after taking the oath of office, 
and executing such official bond, as may be required by law, 
to take upon himself the execution of the office; and it shall 
be his duty, immediately thereafter, to demand of the defen- 
dant in the action all the books and papers in his custody, 
or within his power, belonging to the office from which he 
shall have been excluded. 

$372.— Proceedings against defendant, on refusal to deliver books or papers. 

If the defendant shall refuse or neglect to deliver over 
such books or papers, pursuant to the demand, lie shall be 
deemed guilty of a misdemeanor, and the same proceedings 
shall be had, and with the same effect, to compel delivery 
of such books and papers, as are prescribed by law. 

£373.— Damages, how recovered. 

If judgment be rendered, upon the right of the person so 
alleged to be entitled, in favor of such person, he may 
recover, by action, the damages which, he shall have sus- 
tained by reason of the usurpation by the defendant of the 
office from which such defendant has been excluded. 



142 THE CODE OF 

§374.— One action against several persons claiming office or franchise. 

Where several persons claim to be entitled to the same 
office or franchise, one action may be brought against all 
such persons, in order to try their respective rights to such 
office or franchise. 

§375.— Penalty for nsnrping office or franchise, how awarded. 

When a defendant, whether a natural person or a corpo- 
ration, against whom such action shall have been brought, 
shall be judged guilty of usurping or intruding into, or 
unlawfully holding or exercising any office, franchise, or 
privilege, judgment shall be rendered that such defendant 
be excluded from such office, franchise, or privilege, and 
also that the plaintiff recover costs against such defendant. 
The court may also, in its discretion, fine such defendant a 
sum not exceeding two thousand dollars, which fine, when 
collected, shall be paid into the treasury of the State. 

§376.— Judgment of forfeiture against a corporation. 

If it shall be adjudged that a corporation against which 
an action shall have been brought pursuant to this chapter, 
has, by neglect, abuse, or surrender, forfeited its corporate 
rights, privileges, and franchises, judment shall be ren- 
dered that the corporation be excluded from such corporate 
rights, privileges, and franchises, and that the corporation 
be dissolved. 

§377.— Costs against corporation, or persons claiming to be such, how collected. 
If judgment be rendered in such action against a corpo- 
ration, or against persons claiming to be a corporation, the 
court may cause the costs therein to be collected by execu- 
tion against tha persons claiming to be a corporation, or by 
attachment or process against the directors or other officers 
of such corporation. 

§378. — Restraining corporation, and appointment of receiver. 

When such judgment shall be rendered against a corpo- 
ration, the -court shall have the power to restrain the cor- 



CIVIL PROCEDURE. 143 

poration, to appoint a receiver of its property,' and to take 
an account, and make a distribution thereof among its cred- 
itors; and it shall be the duty of the Attorney-General, 
immediately after the rendition of such judgment, to insti- 
tute proceedings for that purpose. 

<V*79. — Copy of judgment-roll against corporation, where to be filed. 

Upon the rendition of such judgment against a corpora- 
tion, or for the vacating or annulling of letters patent, it 
shall be the duty of the Attorney General to cause a copy of 
the judgment-roll to be forthwith filed in the office of the 
Secretary of State. 

§380. — Entry of judgment relating to letters patent. 

Such secretary shall thereupon, if the record relates to 
letters patent, make an entry in the records of the commis- 
sioners of the land office, of the substance and effect of such 
judgment, and of the time when the record thereof was 
docketed; and the real property granted by such letters 
patent may thereafter be disposed of by such commissioners 
in the same manner as if such letters patent had never been 
issued. 

§381. — Actions for forfeiture of property to the Stale. 

Whenever, by the provisions of law, any property, real or 
personal, shall be forfeited to the State, or to any officer for 
their use, an action for the recovery of such property, 
alleging the grounds of the forfeiture, may be brought by 
the proper officer, in any Superior Court of the State. 



CHAPTER III. 

ACTION FOR THE PARTITION OF REAL PROPERTY, &C. 

§382*— Prur felons of tlie Revised Code applicable to actions of partition. 

The provisions of the Revised Code relating to the parti- 
tion of lands, tenements, and hereditaments, held or pos- 
sessed, by joint tenants or tenants in common, for the recov- 



144 THE CODE OF 

ery of widow's year provisions, of dower, for the recovery of 
the possession of real property, of habeas corpus and manda- 
mus, shall apply to actions for such purposes brought under 
this act, so far as the same can be so applied to the sub- 
stance and subject-matter of the action, without regard to> 
its form. 



CHAPTER IV. 



ACTIONS FOR WASTE AND NUISANCE. 



§383.— Actions of waste abolished. Waste how remediable. 

- The action of waste is abolished ; but any proceeding- 
heretofore commenced, or judgment rendered, or right 
acquired, shall not be affected thereby. Wrongs heretofore 
remediable by action of waste, are subjects of action as other- 
wrongs, in which action there may be judgment for dam- 
ages, for feitureof theestate, of the party offending, and evic- 
tion from the premises. 

$384.— Provisions of Revised Code applicable to action for naste under this act. 

The provisions of the Revised Code relating to the action, 
of waste shall apply to an action for waste brought under 
this act, without regard to the form of the action, so far as 
the same can be so applied. 

§385. — Wlien judgment of forfeiture and eviction to be given. 

Judgment of forfeiture and eviction shall only be given - 
in favor of the person entitled to the reversion, against the 
tenant in possession, when the injury to the estate in rever- 
sion shall be adjudged in the action to be equal to the value 
of the tenant's estate or unexpired term, or to have been, 
done in malice. 



CIVIL PROCEDURE. 145 

§386.— Writ of nuisance abolished. 

The writ of nuisance is abolished; but any proceeding 
heretofore commenced, or any judgment rendered, or right 
acquired, shall not be affected thereby. 

§387.— Remedy for injuries heretofore remediable by writ of nuisance. 

Injuries heretofore remediable by writ of nuisance are sub- 
jects of action, as other injuries ; and in such action there 
may be judgment for damages, or for the removal of the 
nuisance, or both. 



TITLE XVI. 



GENERAL PROVISIONS. 

§388.— Definition of " real property." 

The words " real property," as used in this act, are co-ex- 
tensive with lands, tenements and hereditaments. 

§389. — Definition of " personal property." 

The words "personal property," as used in this act, 
include money, goods, chattels, things in action, and evi- 
dences of debt. 

§390.— Definition of "property." 

The word " property," as used in this act, includes pro- 
perty real and personal. 

§391. — Rule of construction. 

The rule of common law, that statutes in derogation of 
that law are to be strictly construed, has no application to 
this act. 

70 



146 THE CODE OF 

§392.— Statutory provisions inconsistent with this act repealed. 

All statutory provisions inconsistent with this act are 
repealed; but this repeal shall not revive a statute or law 
which may have been repealed or abolished by the provisions 
hereby repealed. And all rights of action given or secured 
by existing laws may be prosecuted in the manner provided 
by this act. If a case shall rise in which an action for the 
enforcement or protection of a right, or the redress or pre- 
vention of a wrong, cannot be had under this act, the prac- 
tice heretofore in use may be adopted so far as may be 
necessary to prevent a failure of justice. 

§393. — Rules and practice inconsistent with this act abrogated. 

The present rules and practice of the courts in civil actions, 
inconsistent with this act, are abrogated: except where 
otherwise expressly provided, but where consistent with 
this act, they shall continue in force, subject to the power of 
the respective courts to relax, modify, or alter the same. 

§391. — Judges of Supreme Court shall make rules of practice. 

The Judges of the Supreme Court of the State, shall make 
from time to time, rules for the practice of that Court, and 
also rules for the practice and procedure of the Superior 
Courts, not inconsistent with the provisions of this Act. 

£395. — Judges of the Superior Conrt to suggest rules. 

Every Judge of a Superior Court, at least once in two 
years, shall send to the Chief Justice of the Supreme Court, 
any suggestions which he may think fit. respecting the 
practice and procedure of the Courts, and respecting any 
other changes in the law which may seem likely to be 
useful. 

§391.— If Judge of a Superior Court not present, Court to be adjourned, wheu. 

It the Judge of a Superior Court shall not be present to 
hold any term of a court, at the time fixed therefor; it shall 
be the duty of the sheriff, to adjourn the court from da} 7 to 



CIVIL PROCEDURE. M 

Jay, until the fourth day of the term inclusive, unless he 
shall be sooner informed that the Judge, trom any cause, 
cannot hold the term; if by sunset on the fourth day the 
Judge shall not appear to hold the term, or if the sheriff 
shall be sooner advised that the Judge cannot hold the term, 
it shall then be the duty of the sheriff to adjourn the court 
until the next term. 

§:J97. — If trial for felony iu progress at expiration of a term, term to be pro- 
longed. 

In case the term of a court shall expire while a trial for 
felony, or for any offence punishable by imprisonment in a 
penitentiary, or by any greater punishment, shall be in pro- 
gress, and before judgment shall be given therein, the Judge 
shall continue the term as Jong as in his opinion it shall be 
necessary for the purposes of the case. 

<jS98.— Pleadings, &<•.,— How written. 

Every process, pleading, report, order, judgment and other 
proceeding required to be in writing, and all copies of 
records, shall be written on paper of the width of foolscap or 
of legal cap; a margin of from three-fourths of an inch to an 
inch wide, shall be left on the left-hand side of each page; 
if the sheet be written on both sides, it shall be so written] 
that when several sheets are attached at their tops, they 
may be read consecutively, without reversing the manu- 
script. 

</M9 — Judges of Superior Conrfc to issae writs of haiieas corpns. 

Judges of the Superior Courts shall have all the powers 
and be subject to all the duties in respect to issuing, hearing, 
and adjudicating on, writs of habeas ccrpus, as weie given 
or imposed by law, on the Judges of the late Superior 
Courts of law of this State. 



148 THE CODE OF 

TITLE XVII. 

REGULATIONS RESPECTING EXISTING SUITS. 

gtOO. — Clerk of Superior Court to transfer existing suits, in which no final 
judgment. 

The Clerks of the Superior Courts, at the request of a 
party thereto, within six months from the ratification of this 
act, and on the payment of a fee of one dollar, shall enter 
on a separate docket, all suits which, at the ratification 
aforesaid, shall have been commenced and in which final 
judgment has not been rendered in the late County Courts, 
Superior Courts of Law, and Courts of Equity of their respec- 
tive counties. 

$101 — Snits not transferred to abate. 

And every suit not so transferred within the time afore- 
said shall be abated, and the Clerk of the Superior Court 
shall tax the costs, against the parties liable, and collect the 
same by the proper process. 

§402.— If transferred, how proceeded with. 

The said suits shall be proceeded in and tried, under the 
existing laws and rules applicable thereto. After final judg- 
ment shall be rendered therein, the clerk shall enter such 
judgment on the execution docket required to be kept by 
him, and the subsequent proceedings shall be as provided 
for actions hereafter to be commenced. 

(^.105.— Existing jndgments not dormant may be transferred. 

Existing judgments and decrees not dormant, may in like 
manner be entered on the execution -docket, and the subse- 
quent proceedings shall be as is prescribed for actions here- 
after to be commenced, as far as shall be compatible with 
the previous proceedings; and no lien acquired before the 
ratification "aforesaid, shall be lost by any change of process, 
occasioned by this act. 



CIVIL PROCEDURE. 149 

§404. — Dormant judgments, how revived. 

Judgments or decrees which are dormant at the ratifica- 
tion aforesaid, may be revived or enforced in the manner 
herein provided. 

$405. — Actions to recover debts embraced in Stay-Law. 

In all actions, hereafter commenced, founded on such con- 
tracts as are provided for in an Ordinance of the Convention 
of this State, entitled, "An Ordinance respecting the juris- 
diction of the Courts of the State," ratified on the fourteenth 
day of March, 1868, the summons shall be made returnable 
to the term of the Superior Court therein designated, and 
the subsequent proceedings shall be in accordance with the 
provisions of said act. 

$406.— Executions levied on personal property. 

The late sheriff of any country having in his hands any 
scire facias execution, which has been levied on personal 
property of the defendants,, which is unsold, shall proceed 
to sell the same, as now required by law; he shall pay over 
the proceeds, after deducting his fees, and shall also make 
return of the writ, to the Clerk of the Superior Court of the 
county, to any court of which the writ is returnable, the 
proceeds to be paid by the clerk to the parties entitled 
thereto. 

§407.— Executions satisfied. 

The said sheriff shall in like manner return all executions 
in their hands which are satisfied, whether by a sale of 
property or otherwise, and shall pay over any proceeds 
thereof. 



150 THE CODE OF 

§408.— Executions not levied at all, or levied on real property. 

As soon as the successors of the said late sheriff shall 
have qualified and given bonds as required by law, the said 
late sheriff shall deliver to said successors, all writs of 
execution in their hands, which have not been satisfied, and 
have not been levied on at all, or which have been levied on 
property which has been sold and a residue remains unsatis- 
fied, or have been levied on real property which in whole or 
in part remains unsold, with a return stating any receipt of 
money by them, and their action under the writ. The new 
sheriffs shall proceed to act under such writ as if the same 
had been addressed and issued to them, and shall make return 
thereof to the next term of the Superior Court of the county 
to any court of which the writ was returnable. Any new 
sheriff failing to make due return of such writs delivered 
to him shall forfeit and pay one hundred dollars to any 
person grieved thereby, to be recovered on motion to the 
court before which the writ is required to be returned. 

All proceeds of executions in .part only satisfied while in 
the hands of any late sheriff, shall be paid by him to the 
Clerk of the Superior Court of the county to any court of 
which the writ was returnable lor the use of the parties 
entitled thereto under the penalties now provided by law in 
case of failure. 



§409.— Execution to be docketed. 

The clerk of any Superior Court to which any execution 
shall be returned as is above prescribed, shall at the request 
of any person interested therein, and on the payment of one 
dollar, enter such execution on his judgment docket, and 
the like process may be thereafter had thereon, as is provided 
in similar cases on judgments recovered after the ratification 
of this act. 



CIVIL PROCEDURE. 151 

§410.— Penalty on Sheriff for falling to return. 

Any late sheriff or other officer having executions in his 
hands and failing to make due return thereof, and to pay 
the proceeds as herein prescribed, shall in each case forfeit 
and pay to any person grieved, one hundred dollars, to be 
recovered on motion to the Court. 

111. — Judgments not dormant ; when, 

No judgment shall be held to have become dormant by 
reason of any stay of execution thereon, in obedience to any 
general or special order, issued by the General lately com- 
manding the Military District of which the State of North 
Carolina formed a part, and the time during which execu- 
tion was so stayed, shall not be counted in determining any 
question respecting a judgment being dormant. 

£412.— Ordinance of 14th March, 1868, not affected. 

Nothing in this Act contained shall affect or impair any 
right given by an ordinance of the Convention of this State 
entitled " An ordinance respecting the jurisdiction of the 
Courts of 4 this State, " ratified on the fourteenth day of 
March, 1868, in the cases to which it is applicable. 



TITLE XVIII. 



SUPREME COURT. 



',i 113. — Jurisdiction of Supreme Court. 

The Supreme Court shall have jurisdiction to review upon 
appeal, any decision of the courts below, upon any matter of 
law or legal inference; but no issue of fact shall be tried 
before this court; and the court shall have power to issue 



152 THE CODE OF 

any remedial writs necessary to give it a general supervision 
and control of the inferior courts. [Constitution, Article IV, 
Section 10.] 

§414. — €«s«« how token to the Supreme Court, 

Cases shall be taken to the Supremo Court by appeal as 
provided in Chapter I, of Title XIV of this Code of Civil 
Procedure. 

<)il5. — Claims against the State. 

The Supreme Court shall have original jurisdiction to 
hear claims against the State, but its decision shall be merely 
recommendatory; no process in the nature of execution 
shall issue thereon : they' shall be reported to the next 
session of the General Assembly for its action. [Constitution, 
Article IV, Section 11.] 

$416. — Manner of Prosecuting claims against State. 

Any person having any claim against the State may file 
his complaint in the offioe of the clerk of the Supreme 
Court, setting forth the nature and grounds of his claim; he 
shall cause a copy of his complaint to be served on the 
Governor, and therein request him to appear on behalf of the 
State and answer his claim; the copy shall be served at 
least twenty days before application for relief shall be made 
to the court. In case of an appearance for the State by the 
Governor, or any other authorized officer, the pleadings and 
trial shall be conducted in such manner as the court shall 
direct. If an issue of fact shall be joined on the pleadings, 
the court shall transfer it to the Superior Court of some 
convenient county for trial by a jury, as other issues of fact 
are directed to be tried; and the Judge of the court before 
whom the trial is had, shall certify to the Supreme Court, 
at its next term, the verdict, and the case, if any, made up 
and settled, as prescribed in section three hundred and one 
of the Code of Civil Procedure. 

If the State shall not appear in the action by any author- 
ized officer, the court may make up issues and send thorn for 
trial as aforesaid. The Supreme Court shall in all cases 



CIVIL PROCEDURE. 153 

report the facts iound. and their recommendation t hereon > 
with the reasons thereof, to the -General Assembly at its 
next term. 



Chapter 


I. 


i< 


II. 


(< 


III. 


K 


IVi 


(( 


V. 


(( 


VI. 


(< 


VII. 


(( 


VIII 


(( 


IX. 


U 


X. 


u 


XI. 



TITLE XIX. 

PROBATE COURTS. 

Jurisdiction and powers. 

Probate of deeds. 

Jurisdiction over estates of deceased persons. 

Probate of wills. 

Letters testamentary. 

Letters of administration with the will annexed. 

Letters of administration. 
VIII. Letters of collection. 

General provisions respecting executors, &c. 

Guardian and ward. 

Accountings by executors, administrators, collectors and guar- 
dians ; and anditings by the Judge of Probate. 
" XII. Masters and apprentices. 
" XIII. Transfer and appeal 
' 4 XIV. What laws repealed and unrepealed. 

CHAPTER 1. 

JURISDICTION AND POWERS. 

$117.— Judges of Probate. 

The Clerks of the Superior Courts are declared Judges of 
Probate in their respective counties. 

$118— Jurisdiction. 

They have jurisdiction : 

1. To take proof of deeds, bills of sale, official bonds, 
letters of attorney, or other instruments permitted or 
required by law to be registered; 



154 THE CODE OF 

2. To take proof of wills and grant letters testamentary and 
of administration; 

3. To revoke letters testamentary and of administration ; 

4. To appoint and remove guardians of infants, idiots and 
lunatics ; 

5. To 'bind out apprentices and to cancel the indentures 
in such cases; 

6. To audit the accounts of executors, administrators, and 
guardians ; 

7. To exercise jurisdiction conferred on them in every 
other case prescribed by law. 

$119. — Disqualification to act. 

No Judge of Probate can act as such in relation to any 
estate or proceeding: 

1. If he has, or claims to have, an interest by distribution, 
by will, or as creditor, or otherwise ; 

2. If he is so related to any person, having or claiming 
such interest, that he would, by reason of such relationship, 
be disqualified as a juror; but the disqualification on this 
ground ceases, unless the objection is made at the first hear- 
ing of the matter before him. 

3. If he or his wife is a party or a subscribing witness to 
any deed of conveyance, testamentary paper or nuncupative 
will ; but this disqualification ceases when such deed, testa- 
mentary paper, or will has been finally admitted to or 
refused probate in another probate court, or before the Judge 
of the Superior Court. 

4. If he or his wife is named as executor or trustee -in 
any testamentary or other paper; but this disqualification 
ceases when the will or other paper is finally (admitted to, 
or) refused probate in another probate court, or before the 
Judge of the Superior Court; 

£ 1 20.— Waiter of disqualification. 

The parties may waive the disqualification specified in 
subdivisions 1, 2 and 5 of the preceeding section, and upon 
filing in the office such waiver in writing, the Judge of 
Probate shall act as in other cases. 



CIVIL PROCEDURE. 155 

$491.— Removal of Proceedings. 

When any of the disqualifications specified in section 
three exists, and there is no waiver thereof, or cannot be 
such waiver, any party in interest may apply to the Judge 
of the district for an order to remove the proceedings to 
the Probate Judge of an adjoining county in the same 
district. 

5422. — Enumeration of powers. 

Every Judge of Probate has power : 

1. To issue subpoenas to compel the attendance of any 
witness residing, or being in the State, or the production of 
any paper, material to any inquiry pending in his court; 

2. To administer oaths and take acknowledgements, when- 
ever necessary, in the exercise of the powers and duties of 
his office; 

3. To issue commissions to take the testimony of any wit- 
ness without this State; 

4. To issue citations and orders to show cause to parties 
in all matters cognizable in his court, and to compel the 
appearance of such parties ; 

5. To enforce all lawful orders and decrees by execution 
or otherwise, against those who fail to comply therewith or 
to execute lawful process. Process may be issued by the 
Probate Judge, to be executed in any county of the State, 
and to be returned before him; 

6. To exemplify, under the seal of his court, all transcripts 
•of deeds, papers or proceedings therein, which shall be 
received in evidence in all the courts of the State; 

7. To preserve order in his court and to punish contempts; 

8. To adjourn any proceeding pending before him from 
time to time; 

9. To open, vacate, modify, set aside, or enter as of a 
former time, decrees or orders of his court, in the same man- 
ner as courts of general jurisdiction ; 

10. To award costs and disbursements as pa-escribed by law, 
to be paid personally, or out of the estate or fund, in any- 
proceeding before him. 



166 THE CODE OF 

§423.— How party may appear. 

A party may appear in proceedings in which he is con- 
cerned in the Probate Court, either in person or by attorney. 

V)42i. — Jndgc of Probate not to act as attorney. 

A Judge of Probate cannot act as attorney or counsel in 
a civil action, for or against an executor, administrator or 
guardian, over whom or whose accounts he might by law 
have jurisdiction, whether such action relates to business of 
the estate or not. He cannot act as attorney or counsel in 
any cause originating in his court; nor shall any partner or 
person connected in law business with him act as counsel or 
attorney in any proceeding before such Judge of Probate,, 
or originating in his court. 

(>425.— Seals. 

The seal, to be used by the Judges of Probate must be the 
same as used by them in their capacity as clerks of the Supe- 
rior Courts; but all orders, decrees, exemplifications or other 
papers relating to the Probate Court, or proceedings therein^ 
must be signed by them as Judges of Probate, and not as 
clerks of the Superior Court. 

^426. — Files. 

Every Judge of Probate must file and preserve all papers 
in proceedings before him, or belonging to the court; and 
all such papers and the books kept by him belong to and 
appertain to his office, and must [be delivered to his suc- 
cessor, 

§447 — Records. 

The following books must be kept by each Judge of Pro- 
bate : 

1 . A Records of wills, in which must be recorded all wills,, 
with the certificates of probate thereof; 

2. A Record of appointments of executors, administrators, 
guardians, collectors, and masters of apprentices, with revo- 
cations of all such appointments. 



CIVIL PROCEDURE. 157 

3. A Record of all orders and decrees passed in his office, 
which he is required to make in writing, and not required 
to be recorded in some other book; 

4. A Record of accounts, in which must be recorded the 
•quarterly and annual accounts of executors, administra- 
tors, collectors and guardians, as audited by him from time 
to time; 

5. A Record of settlements, in which must be entered 
the final settlements of executors, administrators, collectors 
and guardians. 

6. A Fee-book, in which must be entered the items of all 
fees for services of the Probate Judge in each particular 
proceeding or estate, and when and by whom paid. And 
he must annually, during the first week in September, at 
■own expense, report to the Secretary of State a Verified state- 
ment of all his fees received or charged during the year 
precceding the first day of September. 

')428. — Books to be furnished by Secretary of State, aud to be indexed. 

The books required to be kept by the last section must te 
furnished to the Judge of Probate by the Secretary of State; 
and to each of such books there must be attached ah alpha- 
betical index securely bound in the volume, referring to 
the entries therein by the page of the book. These books 
must, at all proper times, be open to the inspection of any 
person. 



CHAPTER II. 



PROBATE OF DEED*. 



s 129. — How made. 

All deeds conveying lands in this State, or letters of 
attorney, or other instruments concerning the same, except 
leases not having more than three years to run, must be 



158 THE CODE OF 

offered for probate, or a certified probate thereof must be 
exhibited before the Judge of Probate of the county, in 
which the real estate is situated, in the manner following; 

1. Where the grantor or maker, or the subscribing wit- 
ness, reside in the State, the deed or other instrument must 
be acknowledged by such grantor or maker, or proved on 
the oath of such subscribing witness; 

2. Where the grantor or maker and the subscribing wit- 
ness are dead, satisfactory proof of the handwriting, both of 
the grantor or maker and of the subscribing witness, must 
be made; unless it appear by affidavit or otherwise that, 
after due diligence, such proof is impossible; when proof of 
the handwriting of the grantor or maker, or of the subscrib- 
ing witness shall be sufficient. 

3. Where the grantor or maker and the subscribing wit- 
ness, reside beyond the limits of the State, but within' the 
United States, the Probate Judge, having jurisdiction, shall 
issue under the seal of his court, a commission to a commis- 
sioner at the place of residence of such grantor, maker or 
witness, authorizing the commissioner to take the acknowl- 
edgment of the parties to the deed, or the examination on 
oatii of the witness thereto, touching the execution thereof. 
The proceedings of the Commissioner, so authorized, being 
returned to the Probate Judge Avho issued the same, he may 
proceed to adjudge, that such deed or other instrument is 
duly acknowled or proved. 

4. Where the acknowledgment or proof of any deed or 
other instrument is taken or made, in the manner directed 
by the laws of this State, before any commissioner of affi- 
davits for the State of North Carolina, appointed by the 
Governor thereof, in any of the States or territories of the 
United States or in the District of Columbia; and where such 
acknowledgment or proof is certified by such commissioner, 
the Judge of Probate, having jurisdiction, upon the same 
being exhibited to him, shall adjudge such deed or other 
instrument to be duly acknowledged or proved in the same 
manner as if made or taken before him. 



CIVIL PROCEDURE. 159 

5. Where the grantor or maker and the subscribing wit- 
ness, reside beyond the limits of the United States, the deed 
or other instrument may be personally acknowledge d by 
such grantor or maker, or proved on the oath of such sub- 
scribing witness, before the chief magistrate of any city in the 
country where the grantor or witness is resident; or before 
any ambassador, minister, consul or commercial agent of 
the United States; and where such proof or acknowledgment 
is certified under the corporate seal of such chief magistrate, 
or under the official seal of such ambassador, minister, con- 
sul or commercial agent; and where such certificate is affixed 
to the deed or other instrument, and the same is exhibited 
before the Probate Judge, having jurisdiction, he shall 
adjudge that such deed, or other instrument, is duly proved, 
or acknowledged. 

6. Every conveyance, power of attorney or other instru- 
ment affecting the estate, right or title of any married 
woman in lands, tenements or hereditaments, must be jointly 
executed by such married woman with her husband; and 
due proof or acknowledgment thereofmust.be made as to 
the husband, before the Judge of Probate having jurisdic- 
tion, who shall take the acknowledgment of the wife, and 
privily examine her, apart from her husband, touching her 
voluntary assent thereto. He shall also endorse thereon a 
certificate of such assent. 

When such proof or acknowledgment is made as to the 
husband, and it appears, that the wife is a resident of some 
other State, or being a resident of this State, is so aged or 
infirm, that she cannot travel to the Judge of Probate to 
make such acknowledgment in person: in that case, the 
Judge of Probate shall issue a commission to a commis- 
sioner.- for receiving such acknowledgment and for taking 
the private examination of the wife, apart from her hus- 
band, touching her assent; which commission, with a cer- 
tificate of the acknowledgment and private examination, 
being returned to the Probate Judge, he shall adjudge that 
such conveyance, power of attorney or other instrument is 
duly acknowledged, and that such examination is in due 
form. 



160 THE CODE OF 

When the proof or acknowledgment of a conveyance, 
power of attorney or other instrument concerning the 
interest of a married woman in lands, is taken before a com- 
missioner of affidavits, as directed in sub-division four, or in 
foreign parts, as directed in sub-division five, of this Article ; 
no Judge of Probate shall adjudge such conveyance or other 
instrument to be duly proved or acknowledged, unless the 
private examination of such married woman is taken accord- 
ing to the laws of this State, and a certificate thereof is 
attached to the deed or other instrument, 

«)430>— When land lies in two or more counties. 

Where real estate is situated in two or more counties, pro- 
bate of the deed or other instrument, conveying or concern- 
ing the same, made in the probate court of any of said coun- 
ties, is sufficient. 

<; 4 31.— Official Bonds. 

The official bonds of all county officers including consta- 
bles, must be acknowledged by the obligors, or proven on 
the oath of the subscribing witness, thereto, before the 
Judges of Probate of the respective counties: Provided, that 
the official bonds of the Clerk of the Superior Court may be 
present or acknowledged as herein directed before the Reg- 
ister of Deeds of the proper county. 

0>432.— M lien Judu;e of Pnobato disqualified to a«t. 

Any Judge of the Superior Court, or the Probate Judge of 
an adjoining county, is authorized to act in matters embraced 
within this article, only when the Judge of Probate of 
the county, where the real estate is situated, is disqualified 
under sub- division three, section three, chapter I, of this 
title. 



CIVIL PROCEDURE. 161 

CHAPTER III. 

JURISDICTION OVER THE ESTATES OF DECEASED PERSONS. 

§433.— When Probate Judge has jurisdiction of the estate. 

The Judge of Probate of each county has jurisdiction, 
within his county, to take proof of wills and to grant letters 
testamentary, letters of administration with the will annexed 
and in cases of intestacy, in the following cases: 

1. Where the decedent at, or immediately previous to his 
death, was domiciled in the county of such Probate Judge, 
in whatever place such death ma"y have happened. 

2. Where the decedent at his death, had fixed places of 
domicil in more than one county, the Judge of Probate of 
any such counties has jurisdiction. 

3. Where the decedent, not being domiciled in this State, 
died out of the State, leaving assets in the county of such 
Judge of Probate, or assets of such decedent thereafter come 
into the county of such Probate Judge. 

4. Where the decedent, not being domiciled in this State, 
died in the county of such Judge of Probate, leaving assets 
in the State, or assets of such decedent thereafter come into 
the State. 

<;434. — Probate Judge first acquiring jurisdiction to have exclusive jurisdiction. 

The Judge of Probate, who first gains and exercises juris- 
diction under sub-division two and three, of the preceeding 
section, thereby acquires sole and exclusive jurisdiction over 
t4ie decedent's estate. 



CHAPTER IV. 

PRORATE OF WILLS. 



$435. — How wills admitted to probate. 

Wills and testaments must be admittei to probate only in 
the following manner: 
11 



162 THE CODE OF 

1. In case a of written will, with witnesses, on the oath of, 
at least, two of the subscribing witnesses, if living ; but when 
any one or more of the subscribing witnesses to such will, 
are dead, or reside out of the State, or are insane or other- 
wise incompetent to testify, then such proof may be taken 
of the handwriting, both of the testator and of the witness 
or witnesses so dead, absent, insane or incompetent, and also 
of such other circumstances, as will satisfy the Judge of 
Probate of the genuineness and the due execution of such 
will. 

2. In case of a holograph will, on the oath of, at least, 
three credible witnesses, Avho state, that they verily believe 
such will and every part thereof, is in the handwriting of 
the person whose will it purports to be, and whose name 
must be subscribed thereto, or inserted in some part thereof. 
It must further appear on the oath of some one of said wit- 
nesses, or of some other credible person, that such will was 
found among the valuable papers and effects of the decedent, 
or was lodged in the hands of some person for safe keeping. 

3. In case of a nuncupative will, where the estate exceeds 
two hundred dollars; on the oath of, at least two credible 
witnesses present at the making thereof, who state that they 
were specially required to bear witness thereto by the tes- 
tator himself. 

It must also be proved that such nuncupative will was 
made in the testator's last sickness, in his own habitation, 
or where he had been previously resident, for, at least, ten 
days, unless he died on a journey or from home. 

No nuncupative will shall be proved by the witnesses 
after six months from the making thereof, unless it was put 
in writing within ten days 'from such making; nor shall it 
be proved till a citation has been first issued or publication 
been made for six weeke in some newspaper printed in the 
State, to call in the widow and next of kin to contest such 
will if they think proper. 

$136.— Executor not ineonipeteat as a witness. 

No person, on account of being an executor of a will, is 
incompetent as a witness to prove the execution thereof. 



CIVIL PROCEDURE. 163 

§43T. — Proofs aud examinations iu writing. 

Every Judge of Probate shall take in writing the proofs 
and examinations of the witnesses touching the execution 
of a will; and he shall embody the substance of such proofs 
and exaninations, in case the will is admitted to probate, in 
his certificate of the probate thereof, which certificate must 
be recorded with the will. The proofs aud examinations as 
taken must be filed in the office. 

$438. — Probate how far touelusivc. 

Such record and probate is conclusive in evidence of the 
validity of the will, until it is vacated on appeal or declared 
void by a competent tribunal. 

§439.— Who may apply for probate. 

Any executor named in a will may, at any time after the 
death of the testator, apply to the Judge of Probate, having 
jurisdiction, to have the same admitted to probate. 

$140.— Who may apply when executor does not. 

If no executor apply to have the will proved within sixty 
days after the death of the testator, any devisee or legatee 
named in the will, or any other person interested in the 
estate, may make such application, upon ten days' notice 
ffWeof to the executor. 

§441.— What to be shown on application. 

On application to the Judge of Probate, he must ascertain 
by affidavit of the applicant: 

1. That such applicant is the executor, devisee or legatee 
named in the will, or is some other person interested in the 
estate, and how so interested. 

2. The value and nature of the testator's property, as near 
as can be ascertained. 

3. The names and residence of all parties entitled to the 
testator's property, it known, or that the same on diligent 
inquiry cannot be discovered; which of said parties in 



164 THE CODE OF 

interest are minors, and whether with or without guardians, 
and the names and residence of such guardians, if known. 

Such affidavit shall be recorded with the will and the 
certificate of probate thereof, if the same is admitted to 
probate. 

§442.— Prod action of will compelled by process. 

Every Judge of Probate having jurisdiction, on application 
by affidavit setting forth the facts, shall, by summons, com- 
pel any person in the State, having in possession the last 
will of any decendent, to exhibit the same in his court for 
probate ; and whoever being duly summoned, refuses in con- 
tempt of the court, to produce such will, or (the same having 
been parted with by him) refuses to inform the court on oath 
where such will is, or in what manner he has disposed of it, 
shall, by order of the Probate Judge, be committed to the 
prison of the county; there to remain without bail till such 
will be produced or accounted for, and due submission made 
for the contempt. 

<> 443.— Will made without the State; how proved. 

Whenever it is suggested to the probate court, by affi- 
davit or otherwise, that a will has been made without the 
State, disposing of or charging- land or other property within 
the State, the Judge of Probate of the county, where the 
property is situated may issue a commission to such person 
as he may select, authorizing the commissioner to take the 
examination of such witnesses as may be produced, touch- 
ing the execution thereof, and upon return of such commis- 
sion, with the examination, he may adjudge the said will to 
be duly proved or otherwise, as in cases on the oral examina- 
tion of witnesses before him, and if duly proved, such will 
shall be recorded. 

§14'. — Villi of citizen or subjeit of another country ; how allowed and record- 
ed in this State. 

Whenever any will, made by a citizen or subject of any 
other State or country, is duly proved and allowel in such 



CIVIL PROCEDURE. 165 

State or country, according to the laws thereof, a copy or 
exemplification of such will, duly certified and authenticated, 
when produced or exhibited before the Judge of Probate of 
any county, wherein any property of the testator may be, 
shall be allowed, filed and recorded in the same manner as 
if the original, and not the copy, had been produced, proved 
and allowed before such Probate Judge. But when any such 
will contains any devise or disposition of real estate in this 
State, such devise or disposition shall not have any validity 
or operation, unless the will is executed according to the 
laws of this State ; and that fact must appear affirmatively 
in the certified probate or exemplification of the will ; and if 
it do not so appear, the Judge of Probate before whom the 
copy is exhibited, shall have power to issue a commission 
for taking proofs, touching the execution of the will, as pre- 
scribed in the preceding section; and the same may be 
adjudged, duly proved, and shall be recorded as therein pro- 
vided. 

$445. — Will of citizen of this State proved elsewhere ; how proved and recorded 
here. 

When a will, made by a citizen of this State is proved and 
allowed in some other State or country, and the original will 
cannot be removed from its place of legal deposit in such 
other State or country, for probate in this State ; the Probate 
Judge of the county, where the testator had his last usual 
residence or has any property, upon a duly certified copy or 
exemplification of such will being exhibited to him for pro- 
bate, shall take every order and proceeding for proving, 
allowing and recording said copy as by law might be taken 
upon the production of the original. 

§116.— Caveat. 

At the time of application for the probate of any will, or 
at any time thereafter, as prescribed by law, any person 
entitled under such will or interested in the estate, mav 
appear in person or by attorney before the probate court, 
and enter a caveat to the probate of such will. 



166 THE CODE OF 

§447. — Transferred to Superior Court ; when. 

Upon any caveator giving bond, with sufficient surety to 
be approved by the Probate Judge, in the sum of two 
hundred dollars, payable to the propounder of the will, con- 
ditioned to pay all costs which, may be adjudged against 
such caveator in the Superior Court, by reason of his failure 
to prosecute his suit with effect ; the Probate Judge shall 
transfer the cause to the Superior Court for trial ; and he 
shall also forthwith issue a citation to all devisees, legatees 
or other parties in interest within the State, and cause pub- 
lication to be made, for six weeks in some newspaper printed 
in the State, for non-residents, to appear at the term of the 
Superior Court, to which the proceeding is transferred, and 
to make themselves proper parties to the said proceeding, 
if they choose. 

§448. — Order to suspend proceedings. 

Where a caveat is entered and bond given, as directed in 
the last two sections, the Judge of Probate shall forthwith 
issue an order to any personal representative, having the 
estate in charge, to suspend all further proceedings in rela- 
tion to the estate, except the preservation of the property 
and the collection of debts, until a decision of the issue is 
had. 



CHAPTER V. 



LETTERS TESTAMENTARY. 



§449.— Who is disqualified to serve as executor. 

The Judge of Probate shall not issue letters testamentary 
to any person who, at the time of applying to qualify, is 

1. Under the age of twenty-one years ; 

2. A person convicted of an infamous crime ; 



CIVIL PROCEDURE. 167 

3. Who, on proof, is adjudged by the probate court, in- 
competent to execute the duties of such trust by reason of 
drunkenness, improvidence, or want of understanding; 

4. Who fails to take the oath or to give bond in cases 
where executors are required by law to give bond ; 

5. Who has renounced his executorship. 

§450. — Executor may renounce. 

Any person appointed as executor may renounce the office 
by a writing signed by him, and on the same being acknowl- 
edged or proved to the satisfaction of the Probate Judge, it 
shall be filed. 

§451* — When executor deemed to hare renounced. 

If any person appointed an executor does not qualify or 
renounce within sixty days after the will is admitted to pro- 
bate, the Judge of Probate, on the application of any other 
executor named in the same will, or any party interested, 
shall issue a citation to such person to show cause why he 
should not be deemed to have renounced. If, upon service 
of the citation, he does not qualify or renounce within such 
time, not exceeding thirty days, as is allowed in the citation, 
an order must be entered by the Judge of Probate decree- 
ing that such persons has renounced his appointment as 
executor. 

()152' — Executor under disqualification of age or absence. 

Where any executor named in the will is under the dis- 
qualification of non-age, specified in section four hundred 
and forty-nine, or is temporarily absent from the State, 
such executor is entitled to six months, after coming of age 



168 THE CODE OF 

or after his return to the State, in which to make application 
to qualify and take letters testamentary. 



CHAPTER VI. 

LETTERS OF ADMINISTRATION WITH WILL ANNEXED. 

§153.— To be granted ; when and to whom. 

If there is no executor appointed in the will, or if, at any 
time, by reason of death, incompetency, adjudged by the 
Probate Court, renunciation, actual or decreed, or removal 
by order of the court, or on any other account, there is no exe- 
cutor qualified to act, the Judge of Probate may issue letters 
of administration, with the will annexed, to some suitable 
person or persons, in the order prescribed in section four 
hundred and fifty-six, Chapter VII. 

§454.— Qualifications. &e. 

Administrators ( in cases prescribed in the preceeding 
section) shall have the same qualifications and give the same 
bond as other administrators. 

$455.— Will of testator to be olserved. 

In all cases, where letters of administration with the will 
annexed, are granted, the will of the testator must be 
observed and performed by the administrator with the will 
annexed, both in respect to real and personal property, and 
an administrator with the will annexed, has all the rights 
and powers, and is subject to the same duties as if he had 
been named executor in the will. 



CIVIL PROCEDURE. 169 



CHAPTER VII. 



LETTERS OF ADMINISTRATION. 



<>456. — To whom granted. 

Letters of administration, in case of intestacy, shall be 
granted to the persons entitled thereto, and applying for 
the same, in the following order : 

1. To the husband or widow ; 

2. To the next of kin in the order of their degree, where 
they are of different degrees — if of equal degree, to one or 
more of them, at the discretion of the probate court ; 

3. To the most competent creditor, who resides within the 
State, and proves his debt on oath, before the probate court ; 

4. To any other person legally competent. 

2 457. — Disqualifications. 

The Probate Judge shall not issue letters of administra- 
tion to any person, who, at the time of appearing to qualify, is 

1. Under -the age of twenty-one years ; 

2. An alien, who is a non-resident of this State ; 

3. A person who has been convicted of an infamous crime; 

4. Who, on proof, is adjudged by the Probate Court 
incompetent to execute the duties ot such trust, by reason 
of drunkenness, improvidence or want of understanding; 

5. Who fails to take the oath or give the bond required 
by law. 

§158. — Joining persons not entitled. 

With the consent of the person or persons who arc enti- 
tled, letters of administration may be granted to one or more 
competent persons who are not entitled, jointly with those 
who are entitled. Such consent must be in writing, and 
the Probate Jude shall file the same. 



170 THE CODE OF 

§459. — Renunciation of persons having prior right. 

When any person applies for administration, and any .other 
person has prior right thereto, a written renunciation of the 
person or persons, having such prior right, must be pro- 
duced and filed with the Probate Judge. 

$165. — Persons having prior right disqualified or absent. 

When any person having such prior right to administra- 
tion, is under the disqualification of age specified in section 
four hundred and fifty-six. or is temporarily absent from the 
State,- such person is entitled to six months, after the disa- 
bility of age is removed or his return to the State, in which 
to renounce his right or apply for letter of administration, 

§461. — What mnst be shoMn on application. 

On application for letters of administration, the Judge of 
Probate must ascertain by affidavit of the applicant or 
otherwise ; 

1. The death of the decedent and his intestacy. 

2. That the applicant is the proper person entitled to 
administration, or that he applies after the renunciation of 
the person or persons so entitled. 

3. The value and nature of the intestator's property, the 
names and residence of all parties entitled as heirs or dis- 
tributees of the estate, if known, or that the same cannot 
on diligent enquiry be procured; which of said parties are 
minors, and whether with or without guardians, and the 
names and evidence of such guardians, if known. 

Such affidavit or other proof must be recorded and filed 
by the Probate Judge. 

§462. — Contested administration. 

Any person interested in the estate may, on complaint 
filed and notice to the applicant, contest the right of such 
applicant for letters of administration, and on any issue of 
fact joined, or matter of law arising, on the pleadings, the 



CIVIL PROCEDURE. 171 

cause may be transferred to the Superior Court for trial, or 
an appeal be taken, as in other cases provided in this Act, 
Chapter XIII. 



CHAPTER VIII. 



LETTERS OF COLLECTION. 



£463.— AYhen to i$*ue and to whom. 

Whenever for any reason, a delay is necessarily produced 
in the admission of a will to probate, or in granting letters 
testamentary, letters of administration or letters of adminis- 
tration with the will annexed, the Judge of Probate may 
issue to some discreet person or persons at his option, letters 
of collection, authorizing the collection and preservation of 
the property of the decedent. 

§461. — Qualifications, &c. 

Every collector shall have the qualifications, and give the 
bond prescribed by law for an administrator. 

$465.— Authority, &c. 

Every collector has authority to collect the personal pro- 
perty, take possession and receive the rents and profits of 
the real property, preserve and secure the estate, and collect 
the debts and credits of the decedent. And for these pur- 
poses, he may commence and maintain or defend suits, and 
he may sell, under the direction and order of the Probate 
Judge, any personal property for the preservation and benefit 
of the estate. He may be sued for debts, due by the dece- 
dent; and he may pay funeral expenses and other debts. 

$466. — Authority when to tease, &e. 

"When letters testamentary, letters of administration, or 
letters of administration with the will annexed, are granted, 
the powers of such collector shall cease, but any suit brought 



172 THE CODE OF 

by the collector may be continued by his successor, the 
executor or the administrator, in his own name. Such col- 
lector must, on demand, deliver to the executor or adminis- 
trator all the property, rights and credits of the decedent 
under his control, and render an account, on oath, to the 
Probate Judge of all his proceedings. Such delivery and 
account may be enforced by citation, order or attachment. 



CHAPTER IX. 

GENERAL PROVISIONS RESPECTING EXECUTORS, &C. 

$467.— Oaths, &c. 

Before letters testamentary, letters of administration with 
the will annexed, letters of administration or letters of col- 
lection, are issued to any person, he must take and subscribe 
an oath or affirmation, before the Judge of Probate, that he 
will faithfully and honestly discharge the duties of his trust, 
which oath must be filed in the office of the Probate Judge. 

§468.— Bond, &c. 

Every executor from whom a bond is now required by law, 
and every administrator and collector, before letters are 
issued, must give a bond payable to the State, with two or 
more sufficient sureties, to be approved'by the Probate Judge, 
and to be jointly and severally bound. The penalty in such 
bond must be double, at least, the value of all property, real 
and personal, of the decedent ; which value is to be ascer- 
tained, by the Probate Judge, by the examination on oath 
of the applicant and of any other person. The bond must be 
conditioned, that such executor, administrator or collector 
shall faithfully execute the trust reposed in him as such, and 
obey all lawful orders of the probate or other court, touching 
the administration of the estate committed to him. 



CIVIL PROCEDURE. 173 

<j469. — Revocation of letters on proof of will, &c. 

If letters of administration are issued, a will is subse- 
quently proved and letters testamentary are issued thereon ;. 
or, if alter letters testamentary are issued, a revocation of 
the will, or a subsequent testamentary paper revoking tho 
appointment of executors, is proved and letters are issued 
thereon, the Judge of Probate must thereupon revoke the 
letters first issued, by an order in writing to be served on. 
the person to whom such first letters were issued ; and, until 
service thereof, the acts of suph person, done in good faith 
are valid. 

§470. — Revocation on ground of disqualification or defanlt. 

If, alter any letters have been issued, it appears to the Pro- 
bate Judge, or if complaint is made to him on affidavit, that 
any person to whom they were issued, is legally incompetent 
to have such letters, or that such person has been guilty of 
default or misconduct in the due execution of his office, or 
that the issue of such letters was obtained by false repre- 
sentations made by such person, the Judge of Probate shall 
issue an order requiring such person to show cause why the 
letters should not be revoked. On the. return of such order, 
duly executed, if the objections are found valid, the letters 
issued to such person must be revoked and superseded, and 
his authority shall thereupon cease. 

^471. — Letters, how issued and tested. 

All letters must be issued in the name of the State, and 
tested in the name of the Judge of Probate, signed by him, 
and sealed with his seal of office. 



CHAPTER X. 



GUARDIAN AND WARD. 



£472.— Power over orphans' estates and to appoint gnardians. 

Each Judge of Probate in his county has full power and 
authority to take cognizance of all matters concerning* 



174 THE CODE OF 

orphans and their estates, and to appoint guardians, where 
it may be deemed necessary, in the manner heretofore exer- 
cised by the late County and Superier Courts. 

£4T3.— Inquisition of lunacy. 

Any person in behalf of one who is deemed an idiot, ine- 
briate or lunatic, or incompetent from want of understand- 
ing to manage his own affairs, by reason of the excessive 
use of intoxicating drinks or other cause, may file a petition 
before the Judge of Probate of the county where such sup- 
posed idiot, inebriate or lunatic resides, setting forth the 
facts, duly verified by the oath of the petitioner. Where- 
upon such Judge of Probate shall issue an order, upon 
notice to the supposed idiot, inebriate or lunatic, to the 
sheriff of the county commanding him to summon a jury of 
twelve men to inquire into the state of mind of such sup- 
posed idiot, inebriate or lunatic. The jury shall make return 
of their proceedings under their hands to the Judge of Pro- 
bate, who shall file and record the same; and he shall pro- 
ceed to appoint a gaurdian of any person so found to be an 
idiot, inebriate or lunatic, by inquisition of a jury, as in cases 
oforphana 

\)17i.— Proceedings on application for guardianship. 

On application to any Judge of Probate for the custody 
and guardianship of any infant, idiot, inebriate or lunatic, it 
is the duty of such Judge of Probate to inform himself of 
the circumstances of the case on the oath of the applicant 
or of any other person; and if none of the relatives of the 
infant, idiot, inebriate or lunatic are present at such applica- 
tion, the Probate Judge must assign, or, for any other good 
cause, he may assign a day for the hearing; and he shall 
thereupon direct notice thereof to be given to such of the 
relatives and to such other persons, if any, as he deem it 
proper to notify. On the hearing,, he shall ascertain, on 
oath, the amount of the property, real and personal, of the 
infant, idiot, inebriate or lunatic, and the value of the rents 



CIVIL PROCEDURE. 175 

^and profits or the real estate; and he may grant or refuse 
the application, or commit the guardianship to some other 
person, as he may think best for the interest of the infant, 
idiot, inebriate or lunatic. 

■§ 175 . — Letters of appointment. 

The Judge of Probate must issue to every guardian 
appointed by him a letter of appointment, which shall be 
signed by him and sealed with the seal with the of his office. 

^476. — Reference to sections 456, 467, 469. 

The provisions of sections four hundred and fifty-six, four 
hundred andsixty-seven, and four hundred and seventy, of 
this Act, in reference to qualification; in reference to the 
execution of a bond; and in reference to a revocation of 
appointment on the ground of misconduct or disqualifica- 
tion, shall apply to the case of guardians appointed by a 
Judge of Probate. 



CHAPTER XL 

.ACCOUNTINGS BY EXECUTORS, ADMINISTRATORS, COLLECTORS AND 
GUARDIANS; AND AUDITINGS BY THE JUDGE OF PROBATE. 

;177. — Make return on oath ; when. 

Every executor, administrator, collector and guardian 
shall, within three months after his qualification or appoint- 
ment, make return on oath to the Judge of Probate, of all 
the estate in his hands or received by himjup to that time; 
hut such time may be extended by the Probate Judge, on 
good cause shown, not exceeding six months. 

§178.— AnBda] accounts. 

Every executor, administrator, collector and guardian, 
shall, within twelve months from the date of his qualifica- 
tion or appointment, aad annually, so long as any of the 



176 THE CODE OF 

estate remains in his control, file, in the office of the Judge 
of Probate, an inventory and account, under oath, oi the 
amount of property received by him, or invested by him 
and the manner and nature of such investment, and his 
receipts and disbursements for the past year in the form of 
debit and credit. He must produce vouchers, w hich "iiuwt 
bo filod . with the - Jmlge uf Piubtt^. , for all payments. The 
Judge of Probate may examine on oath, such accounting 
party, or any other person, concerning the receipts, dis- 
bursements or any other matter relating to the estate; and, 
having carefully revised and audited such account, if he 
approve the same, he must endorse his approval thereon, 
which shall be deemed prima faciea evidence of correctness. 
Each Judge of Probate must annex or attach a copy of this 
section to all letters issued by him. 

§iT9.— Failure to account. 

If any executor, administrator, collector or guardian omits 
to account, as directed in the preceding section, or renders 
an insufficient and unsatisfactory account, the Probate Judge 
shall forthwith order such executor, administrator, collector 
or guardian to render a full and satisfactory account, as 
required by law, within twenty days after service of the 
order. Upon return of the order, duly served, if such 
executor, administrator, collector, or guardian, fail to appear 
or refuse to exhibit such account, the Judge of Probate may 
issue an attachment against him for a contempt and commit 
him till he exhibit such account, and may likewise remove 
him from office. 

$480.— Vouchers. *» 

Vouchers are presumptive evidence of disbursement, 
without other proof, unless impeached. If lost, the account- 
ing party must, if required, make oath to that fact, setting 
forth the manner of loss, and state the contents and purport 
of the voucher. 



CIVIL PROCEDURE. 177 

§481.— Final accounts. 

An executor, or administrator, may be required to file his 
final account for settlement in the court of probate by a 
citation directed to him, at any time after two years from 
his qualification, at the instance of any person interested in 
the estate; and a guardian may be required to file such 
account at any time after six months from the ward's coming 
of full age, or the cessation of the guardianship : but such 
account maybe filed voluntarily at any time; and, whether 
the accounting be voluntary or compulsory, it shall be 
audited and recorded by the Judge of Probate. 



CHAPTER XII. 



MASTERS AND APPRENTICES. 



§482. — Binding to be by indenture. 

The binding of apprentices shall be by indenture, made 
in the name of the Judge of Probate of the county of the 
one part, and of the master or mistress of the other part; 
which indenture shall be recorded and filed in the office. of 
the probate court. 

§483.— Remedy thereon. 

The apprentice may bring an action on such indenture in 
the name of the Judge of [Probate and his successors, and 
recover any damages sustained by reason of the breach of 
the covenants contained in said indenture. 

§484,— Who may be apprenticed. 

The Judges of Probate in their respective counties shall 
bind out as apprentices : 

1. All orphans whose estates are of so small value, that 
no person will educate and maintain them for the profits 
thereof; 

12 



+ 



178 THE CODE OF 

'2. All infants whose fathers have deserted their families 
=and been absent for one year, leaving them without suffi- 
'cient support; 

3. All infants (not living with the father) whose mother 
has secured to hecsuch property as the infants may there- 
after acquire, provided the Probate Judge deems it improper 
to permit such infants to remain with the mother; 

4. All infants who make application to the Board of Com- 
missioners of the county for relief out of the funds for the 
poor, and such fact is certified by the Board to the Judge of 
Probate ; 

5. All infants, whose parents do not habitually employ 
their time in some honest, industrious occupation. 

§4S5. — For what time boniid. 

Every apprentice shall be bound to some discret person 
approved by the Judge of Probate, till the age of twenty- 
one. 

§486. — Dnties of masters. 

The master shall provide for the apprentice: 

1. Diet, clothes, lodgings and accommodation fit and 
ioecessary; 

2. Education in reading, writing and arithmetic; 

3. Six dollars in cash, a new suit of clothes and a new 
JBible, at the end of the apprenticeship; 

4. Such other education, sum of money, or articles of 
furniture or implements of trade, as may be agreed on 
between the court and the master, and inserted in the 
indenture. 

;§48T.— Duty of Probate Judge. 

On application of any person to have an apprentice bound 

to him, it is the duty of the Judge of Probate to inform 

himself of the circumstances of the case; and, for this pur- 

■pose, he may cite before him the relatives of the orphan or 

. infant, for examination on oath ; and he may also examine 

usuch other persons as he deems proj^er. In the selection of 



CIVIL PROCEDURE. 179 

a master, he shall prefer, so far as may be consistent in other 
respects with the comfort and interest of the apprentice, 
some tradesman of a useful art or mystery. 

■§488- — Apprentices, how compelled to serve. 

If an apprentice refuses to serve as required by the inden- 
ture or by law, the Judge of Probate may, on application of 
the master, compel him, by citation or otherwise, to appear 
for inquiry into the facts; and if the complaint is well- 
founded, and the apprentice persists in such refusal, the 
Judge of Prob&te may commit him by warrant to the House 
of Correction or the common jail of the county, until he 
consents. 

^489. — Misconduct of masters. 

Upon complaint of any apprentice that the master is 
guilty of cruelty, ill-usage, refusal of necessary provisions 
or clothing, or any other violation of the indenture, or of 
the law towards such apprentice, the Judge of Probate may, 
by order, compel the appearance of the master before him, 
when he shall examine and determine the complaint ; and 
if the same is well-founded, he shall cancel the indenture 
and discharge such apprentice from his obligation of service, 
and may proceed to appoint another master. 



CHAPTER XIII. 



TRANSFER AND APPEAL. 



<)490.— Issnes of fact and matters of law. 

All issues of fact joined before the Judge of Probate shall 
be transferred to the Superior Court of the county for trial ; 
and appeals shall lie to the Judge of the Superior Court of 
the district, either in term-time or vacation, from the judg- 
ments of the probate court .in all matters of law. 

I 



180 THE CODE OF 

§491. — No bond reqnired. 

In case of transfer or appeal, as provided in the preceding 
section, neither party is required to give a bond for costs 
except as in this Title otherwise expressly directed ; and the 
Judge of Probate shall transmit, on such transfer or appeal, 
to the Superior Court or the Judge thereof, the pleadings on 
other papers, oh which the issue of fact or of law arises. 

$492.— Appeals, when taken and by whom. 

An appeal must be |taken within twenty days after the 
entry of the order or judgment of the probate court; but an 
appeal can only be taken by a party aggrieved, who appeared 
and moved for or opposed the order or judgment appealed 
from, or, who being entitled to be heard thereon, had no 
notice or opportunity to be heard; which fact may be shown 
by affidavit or other proof. 



CHAPTER XIV. 

WHAT LAWS REPEALED AND UNREPEALED. 

$493. — What laws repealed and unrepealed. 

All laws and parts of laws in conflict with the provisions 
of this Title, are repealed. But chapters five, thirty-seven, 
forty-six, fifty-four, fifty-seven and one hundred and nineteen 
of the Revised Code, concerning " Apprentices," concerning 
"Deeds and Conveyances," concerning "Executors and 
Administrators," concerning " Guardian and Ward," concern- 
ing "Idiots and Lunatics," and j concerning "Wills and 
Testaments," so far as said chapters t or^any part thereof, are 
not inconsistent with the provisions ot this Title, remain in 
force. 



•; CIVIL PROCEDURE. 181 

TITLE XX. 

TIIE COURTS OF JUSTICES OF THE PEACE. 

$494.— Laws repealed. 

Sections 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 , 
19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30 and 36, Chapter 62, 
ot the Revised Code are repealed, and the provisions of this 
Title are substituted in their stead; and all other laws in 
conflict with the provisions of this Title are repealed ; pro- 
vided that nothing herein contained shall be held to abrogate 
in any manner an ordinance of the Convention, ratified 
March 14th, A. D. 1868, entitled "An Ordinance respecting 
the jurisdiction of the Courts of this State." 

CHAPTER I. 

MANNER OF COMMENCING CIVIL ACTIONS IN JUSTICES' COURTS. 

$495.— Summons. 

Civil actions in these courts shall be commenced by the 
issuing of a summons. 

$496. — Summons by whom issned. 

The summons shall be issued by the Justice and signed by 
him. It shall run in the name of the State, and be directed 
to any Constable or other lawful officer, commanding him 
to summon the defendant to appear and answer the com- 
plaint of the plaintiff at a place, within the county, to be 
therein specified, and at a time, to be therein named, not 
exceeding twenty days from the date of the summons. It 
shall also contain the amount of the sum demanded by the 
plaintiff. 

§497. — Service and retnrn of snmmous. 

The officer to whom the summons is delivered shall exe- 
cute the same within five days after its receipt by him, or 



182 THE CODE OF 

immediately, if required to do so by the plaintiff. Before 
proceeding to execute it, he is entitled to require of the 
plaintiff his fee for the service, and five cents per mile 
traveled by him out of his township on such service. When 
executed he shall immediately return the summons, with 
the date and manner of the service and the distance traveled 
by him out of his towuship, to the Justice, who issued the 
same. 



CHAPTER II. 

JURISDICTION AND MANNER OF PROCEEDING. 

498.— Jurisdiction. 

Justices of the Peace shall have exclusive original juris- 
diction of all civil actions founded on contract, except: 

1. Wherein the sum demanded exceeeds two hundred 
dollars : 

2. Wherein the title to real estate is in controversy. 

§499. — Where sum demanded exceeds two hundred dollars. 

Where it appears, in any action brought before a Justice, 
that the sum demanded exceeds two hundred dollars, the 
Justice shall dismiss the action and render judgment against 
the plaintiff for the costs. 

§500— Answer to title. 

In every action brought in a court of a Justice of the 
Peace, where the title to real estate comes in controversy, 
the defendant may, either with or without other matter of 
defence, set forth, in his answer, any matter showing that 
such title will come in question. -Such answer sliall be in 
writing, signed by the defendant or his attorney, and deliv- 
ered to the Justice. 



CIVIL PROCEDURE. 18$ 

§501.— Aetion to be dismissed, when. 

If it appears on the trial, that the title to the real estate is 
in controversy, the Justice shall dismiss the action and ren- 
der judgment against the plaintiff for the cost. 

§502— Another aetion may be brought. 

When a suit before a Justice, is dismissed upon answer, 
and proof by the defendant, that the title to real estate, is 
in controversy in the case, the plaintiff may prosecute an 
action for the same cause in the Superior Court, and the 
•defendant shall not be admitted in that court, to deny the 
jurisdiction by an answer contradicting this answer in the 
Justice's court. 

§503.— Docketing Justifes' judgment. 

A Justice of the Peace, on the demand of a party in whose 
favor he has rendered a judgment, shall give a transcript 
thereof, which may be filed and docketed in. the office of the 
Superior Court Clerk of the county, where the judgment was 
rendered. The time of the receipt of the transcript by the 
clerk, shall be noted thereon and entered in the^rocket; and 
from that time, the judgment shall be a judgment of the 
Superior Court in all respects. The execution thereon shall 
be issued by the Clerk of the Superior Court to the sheriff of 
the county, and shall have the same effect, and be executed 
in the same manner as other executions of the Superior 
Court. A certified transcript of such judgment may be 
filed and docketed in the Superior Court Clerk's office of any 
other county, and with the like effect, in every respect, as in 
the county where the judgment was rendered, except that it 
shall be a lien only from the time of filing and docketing 
such transcript. But no Justices' judgment for a less sum 
than twenty-five dollars, exclusive of costs, shall be so filed 
and docketed in the office of the Clerk of the Superior 
Court. 



184 THE CODE OF 

§501.— Rales of proceeding in Justices' eonrt. 

RULE I. 

The pleadings in these Courts are : 

1. The complaint of the plaintiff. 

2. The answer by the defendant. 

RULE II. 

The pleadings may be either oral or wrftten ; if oral, the 
substance must be entered by the Justice on his docket ; if 
written, they must be filed by the Justice, and a reference 
to them be made in his docket. 

RULE III. 

The complaint must state, in a plain and direct manner, 
the facts constituting the cause of action. 

RULE IV. 

The answer may contain a denial of the complaint, or oi 
any part thereof, and also a notice, in a plain and direct 
manner, of any facts constituting a defence or counter-claim. 

RULE Y. 

Pleadings are not required to be in any particular form, 
but must be such as to enable a person of common under- 
standing to know what is meant. 

RULE VI. 

[ Where a defendant does not appear and ansiver, the irtaintiff 
must stillprove his case before he can recover f\ 

RULE VII. 

In an action or defence, founded on an account or an 
instrument for the payment of money only, it is sufficient 
for a party to deliver the account or instrument to the Jus- 
tice and state that there is due to him thereon from the 
adverse party a specified sum, which he claims to recover 
or set-off. 



CIVIL PROCEDURE. 185 



RULE VIII. 



A variance between the evidence on the trial and the 
allegations in a pleading, shall be disregarded as immate- 
rial, unless the court is satisfied that the adverse party has 
been misled to his prejudice thereby. 



RULE IX. 



The pleadings may be amended, at any time, betore the 
trial, or during the trial, or upon appeal, when, by such 
amendment, substantial justice will be promoted. If the 
amendment be made after the joining of the issue, and it 
appears to the satisfaction of the court, by oath, that an 
adjournment is necessary to the adverse party, in conse- 
quence of such amendment, an adjournment shall be granted. 
The court may also, in its discretion, require as a condition 
of an amendment, .the payment of costs to the adverse party. 



RULE X. 



The Justice may, at the joining of issue, require either 
party, at the request of the other, at that or some, other spe- 
cified time, to exhibit his account or demand, or state the 
nature thereof as far forth as may be in his power; and in 
case of his default, the Justice shall preclude him from 
giving evidence of such parts thereof as have not been so 
exhibited or stated. 



RULE XI. 



Either party may demur to a pleading of his adversary, or 
to any part thereof, when it is not sufficiently explicit to 
enable him to understand it, or it contains no cause of action 
or defence, although it be taken as true. 



RULE XII. 



If the Justice deem the objection well-founded, he shall 
order the pleading to be amended on such terms as lie may 
think just; and if the party refuse to amend, the defective 

pleading shall be disregarded. 



186 THE CODE OF 



RULE XIII. 



The Justice shall enter all his proceedings in a cause tried 
before him in his docket. No part of such proceedings must 
be entered on the summons, on the pleadings or on any 
other paper in the cause. 



RULE xiv. 



Execution may be issued on a judgment, rendered in a 
Justices' court, at any time within one year after the rendi- 
tion thereof, and shall be returnable sixty days from the 
date of the same. 



RULE XV. 



The provisions of the Code of Civil Procedure, respecting 
forms of actions, parties to actions, the times of commencing 
actions, and the service of process upon corporations, shall 
apply to Justices' courts. 



RULE XVI. 



The defendant may, on the return of process and before 
answering, make an offer in writing to allow judgment to 
be taken against him for an amount, to be stated in such 
offer, with costs. The plaintiff shall thereupon, and before 
any other proceeding be had in the action, determine 
whether he will accept or reject such offer. If he accept 
the offer, and give notice thereof in writing, the Justice shall 
file the offer and the acceptance thereof, and render judg- 
ment accordingly. If notice of acceptance be not given, 
and if the plaintiff fail to obtain judgment for a greater 
amount, exclusive of costs, than has been specified in the 
offer, he shall not recover costs, but shall pay to the defen- 
dant his costs accruing subsequent to the offer. 



RULE XVII. 



Any Justice before whom an action is brought, may, on 
sufficient excuse therefor shown on the affidavit of either 



CIVIL PROCEDURE. 187 

party or any person for him, continue such action from time 
to time for trial. But such continuance shall not exceed 
thirty days. 

$505. — Execution— on what and from what time ^ lieu. 

Executions issued by a Justice, which must be directed 
to any constable of the county, shall be a lien on the goods 
and chattels of the defendant named therein, from the levy 
thereof only; but shall not be levied on or enforced in any 
manner against real estate, but when such shall be made a 
judgment of the Superior Court as is provided by section five 
hundred and three, it shall be capable of being levied, and 
collected out of any property of the defendant, in execution, 
and it shall be a lien on the real estate of said defendant, from 
the time when it becomes a judgment of the Superior Court. 

506. — Stay of execution— Security. 

The party praying for stay of execution shall within ten 
days after the trial, give sufficient security, approved by the 
Justice, for payment of the judgment, with interest thereon 
till paid, and' Cost; and the acknowledgment of the surety., 
entered by the Justice in his docket and signed by the 
surety, shall be sufficient to bind such surety. If the judg- 
ment be not discharged at the time to which execution has 
been stayed, the Justice who awarded the judgment shall 
issue execution against the principal, or surety, or both. 

§507. — Former judgment. 

On the trial of an action founded on a former judgment, 
the judgment itself shall be evidence of the debt, subject to 
such payments as have been made. 

$508.— Application for re-hearing. 

When a judgment has been rendered by a Justice, in the 
absence of either party, and when such absence was caused 
by the sickness, excusable mistake or neglect of the party, 
such absent party, his agent or attorney may, within ten 
days after the date of such judgment, apply for relief to the 



188 THE CODE OF 

Justice, who awarded the same, by affidavit, setting forth 
the facts, which affidavit must be filed by the Justice; where- 
upon the Justice, if he deem the affidavit sufficient, shall 
open the case for re-consideration ; and to this end, he shall 
issue a summons, directed to a constable, to cause the adverse 
party, together with the witnesses on both sides, to appear 
before him at a place and at a time, not exceeding twenty 
days, to be specified in the summons; when the complaint 
shall be re-heard, and the same proceedings had as if the 
case had never been acted on. If execution has been issued 
on the judgment, the Justice shall direct an order to the 
officer, having such execution in his hands, commanding 
him to forbear all further proceedings thereon, and to return 
the same to the Justice forthwith. 

* 
$509.— Justices judgment removed to another county, how. 

Any person, who may desire to have a Justice's judgment 
in his favor removed to another county to be enforced 
against the goods and chattels of the defendant, must obtain 
from the Justice who rendered the judgment a transcript 
thereof, under his hand ; and must further procure a certi- 
ficate from the Clerk of the Superior Court of the county 
where the judgment was rendered, under the seal of his 
court, that the Justice who gave the judgment was, at the 
rendition thereof, a Justice of said county. On such trans- 
cript of the judgment, thus certified, any Justice in any 
other county, may award execution for the sum therein 
expressed. 

§510.— Witnesses, penalties, &c. 

The Justice, on application of either party, shall, by a 
subpoena or by an order in writing on the process, direct 
the constable or other officer to summon witnesses to appear 
and give testimony, at the time and place appointed for the 
trial. Each witness, failing to appear, shall forfeit and pay 
eight dollars to the party at whose instance he was sum- 
moned, and shall be, further, liable to such party for all 
damage sustained by non-attendance. The fine herein 



CIVIL PROCEDURE. 189 

imposed, may be recovered on motion before the Justice, 
•who tried the action, unless the witness, on a notice of five 
days, by affidavit or other proof, show sufficient excuse for 
his failure to attend. 



CHAPTER III. 



ARREST AND BAIL. 



§511. — Provisions of Code of Civil Procedure applicable. 

The provisions of the Code of Civil Procedure, Title X, 
Chapter I, are applicable, except as herein otherwise directed, 
to proceedings in Justice's Courts concerning "Arrest and 
Bail," substituting the words " Constable" for the word 
"Sheriff" and the words "Justice of the Peace" for the 
words "Judge, Court or Clerk" whenever they occur in said 
chapter. 

$512. — Arrest, iu what cases. 

The defendant may be arrested in the following cases : 

1. When the defendant has been guilty of a fraud in con- 
tracting the debt or obligation for which the action is 
brought. 

2. When the defendant is not a resident of the State, or 
is about to remove therefrom. 

3. When the defendant has removed or disposed of his 
property, or is about to do so, with intent to defrand his 
creditors. 

t 
§513.— Order for arrest, by whom made. 

An order for the arrest of the defendant must be obtained 
from the Justice of the Peace before whom the action is 
brought. 

§514.— Affidavit to obtain order. 

The order may be made where it appears to the Justice 
of the Peace, by affidavit of the plaintiff or of any other 



190 THE CODE OF 

person, that a sufficient cause of action exists, and that, the 
case is one of those mentioned in section five hundred and 
twelve, Chapter III, of this Title. 

$515. — To what actions this chapter applies. 

The provisions of this chapter shall apply to all actions 
included within the provisions of section five hundred and 
twelve, Chapter III, which shall be commenced after the 
ratification of this Title. 



CHAPTER IV. ■ 

ATTACHMENT. 

<j516.— Provisions of Code of Civil Procednre applicable. 

The provisions of the Code of Civil Procedure, Title X. 
Chapter IV., are applicable to proceedings by Attachment 
before Justices of the Peace^ in all cases founded on contract 
wherein the sum demanded does not exceed two hundred 
dollars, and where the title to real estate is not in controversy. 



CHAPTER V. 

JURY TRIALS IN COURTS OF JUSTICES OF THE PEACE. 

^517. — Jury list famished to each Justice. 

The Clerk of the Board of Commissioners shall furnish, 
on demand, to each Justice of the Peace in the county, a 
list of the jurors for the township for which such Justice is 
elected or appointed. 

<>518.— Justice to keep jury box. 

Each Justice shall keep a jury box, having two divisions 
marked No. 1 and 2, and having two locks, the key of one 
to be kept by the Justice and the other by the clerk ol the 
township Board of Trustees. 



CIVIL PROCEDURE. 191 

§519.— Xanies of jurors to be deposited iu jury box. 

Each Justice shall cause the names on his jury list to be 
written on small scrolls of paper of equal size, and to be 
placed in the jury box, in division marked No. 1, until 
drawn out for the trial of an issue as required by law. 

).j20.— When trial .by jury demanded or waived. 

A trial by jury must be demanded at the time of joining 
the issue of fact ; and if neither party demand at such time, 
a jury, they shall be deemed to have waived a trial by jury. 

§521.— Jury drawn and trial postponed. 

When a trial by jury is demanded, the Justice shall 
immediately, in the presence of the parties, proceed to draw 
the names of twelve jurors from division marked No. 1, of 
the jury box; and the the trial of the cause shall thereupon 
be postponed to a time and place to'«be fixed by the Justice. 

§522.— Summoning ot the jury. 

A list of the jurors so drawn shall be immediately deliv- 
ered by the Justice to any constable, with an order endorsed 
thereon, directing him to summon the persons named in the 
list, to appear as jurors, at the time and place fixed for the 
trial ; and it is the duty of the constable to proceed forthwith 
to summons such juaors, or so many of them as can be found, 
according to the order; and he shall make return thereof, at 
the time and place appointed, stating in his return the 
names of the jurors summoned by him. 

<;523.— Tbe jury for the trial of the cause. 

At the time and place appointed, and on return of the 
order, if the trial be not further adjourned, and if adjourned, 
then at the time and place to which the trial shall be 
adjourned, the Justice shall proceed, in the presence of the 
parties, to draw from the jurors summoned the names of six 
persons to constitute the jury for the trial of the issue. 

^524.— Challenge. 

Each party shall be entitled to challenge, peremptorily, 
two of the persons drawn as jurors. 



192' THE CODE OF 

§525.— What names to be returned to the jury box or destroyed. 

The scrolls containing the names of jurors not summoned, 
if any, and of those summoned, but not drawn, and of those 
drawn, but challenged and set aside, must be returned by 
the Justice to his jury box, in division marked No. 1 ; pro- 
vided that the scrolls containing the names of such as are not 
legally liable, or legally qualified to serve as" jurors, shall be 
destroyed. 

§526. — Tales jnrors may be summoned. 

If a competent and indifferent jury is not obtained from 
the twelve jurors drawn as specified in section five hundred 
and twenty-two, the Justice may direct others to be sum- 
moned, from the bystanders, sufficient to complete the jury. 

§527. — Jury sworn and empennelled — verdict, &c. 

The jury shall be sworn and empannelled by the Justice, 
who shall record their verdict in his docket and enter a 
judgment in the case according to such verdict. 

<>528.— New trial— appeal. 

A new trial is not allowed in a Justice's Court in any case 
whatever; but either party dissatisfied with the judgment 
in such court may appeal therefrom to the Superior Court, 
as prescribed in chapter VI. of this Act. 

§529. — Less than six may be a jury — when. 

Six jurors shall constitute a jury in a Justices' court, but, 
by consent of both parties, a less number may constitute it. 

§580. — Not compelled to serve out of township. 

No person is compelled to serve as a juror, in a Justice's 
court, out of his own township, except as a talesman. 

§531.— Jnrors serving on trial, &c. 

The scrolls, containing the names of the jurors who serve 
on the trial of an issue, must be placed in the jury box in 
division marked No. 2, until all the scrolls in division marked 



CIVIL PROCEDURE. 193 

No. 1, have been drawn out. As often as that may happen, 
the whole number of scrolls shall be returned to division 
marked No. 1, to be drawn out as in the first instance. 

§538. — Deposit of jury fees. 

Before a party is entitled to a jury, he shall deposit with 
the Justice the sum of three dollars for jury fees; and the 
Justice shall pay to all persons who attend, pursuant to the 
summons, as well to those who do not actually serve as to 
those who do serve, twenty-five cents each, to be included 
in the judgment as part of the costs, in case the party 
demanding the jury recover judgment, but not otherwise. 
The Justice shall refund to the party the fees of all jurors 
who do not attend. 

$583. — Adjournment after return of the jury. 

No adjournment shall be granted after the return of the 
jury, unless the party asking the same shall, in addition to 
the other conditions imposed on him by law or by the Jus- 
tice, deposit with the Justice, to be immediately paid to the 
jurors attending, the sum of twenty-five cents each, such 
amount to be in no case included in the judgment, as part 
of the costs. On such adjournment, the jurors shall attend 
at the time and place appointed, without further summons 
or notice; and the fees for the jury, deposited with the Jus- 
tice according to the preceding section, shall remain in his 
hands, until the jury are empanneled on the trial, aud shall 
be then immediately paid to the jurors or to the party enti- 
tled thereto. 



CHAPTER VI 



APPEAL. 



$534. — Appeal— Execution. 

The party against whom judgment is rendered, in any 
civil action in a Justice's Court, may appeal to the Superior 



194 THE CODE OF 

Court from the same ; but uo appeal shall prevent the 
issuing of an execution on such judgment or work a stay 
thereof, except as herein afterwards provided. 

$535 • — Appeal, when to be taken. 

The appellant shall, within ten days after judgment, serve 
a notice of appeal, stating the grounds upon which the appeal 
is founded. If the judgment is rendered upon process not 
personally served, or the defendant did not appear and 
answer, he shall have fifteen days, after personal notice of 
the rendition of the judgment, to serve the notice of appeal 
herein provided for. 

$538. — Notice of appeal, on whom served. 

The notice of appeal must, within the time stated in the 
last section, be served on the Justice who rendered the 
judgment, if living and within the county, and on the res- 
pondent or his agent or attorney, who appeared for him on 
the trial. 

§5.37.— Retnrn to the appeal. 

The Justice shall, thereupon, within ten days after the 
service of the notice of appeal on him, make a return to the 
appellate court and file with the clerk thereof, the papers, 
proceedings and judgment in the case, with the notice of 
appeal served on him. He may be compelled to make such 
return by attachment. But no Justice shall be bound to 
make such return until the fees, prescribed by law for this 
service, be paid him. The fee, so paid, shall be included in 
the costs, in case the judgment appealed from is reversed. 

§538. — Defective retnrn. 

If the return be defective, the Judge or Clerk of the 
appellate Court may direct a further or amended return, as 
often as may be necessary, and may compel a compliance 
with the order by attachment. 



CIVIL PROCEDURE. 195 

§539.— On return to 'the appeal, what to be done. 

When the return is made, the Clerk of the appellate Court, 
if the judgment exceed twenty-five dollars, exclusive of cost, 
shall docket the case on his trial docket, for a new trial of 
the whole matter at the ensuing term of said court. If the 
judgment be for twenty-five dollars or less, exclusive of costs, 
he shall forthwith transmit the papers, proceedings and 
judgment to the Judge of the District, who shall hear and 
determine only the matters of law therein, and send his 
decision thereon to the clerk of the appellate court. 

•>10. — Appeal, on what heard* 

The appeal shall, in all cases, be heard on the original 
papers, and no copy thereof need be furnished for the use of 
the appellate court. 

§5*1. — Exeentlon of the judgment, bow stayed. 

If the appellant desire a stay of execution of the judg- 
ment, he may apply, at any time, to the clerk of the appel- 
late court for leave to give the undertaking, as provided in 
the next section; who shall, upon the undertaking being 
given, make an order Jhat all proceedings on the judgment 
be stayed. 

•§542,— Same, undertaking to he given. 

The undertaking shall be in writing, executed by one or 
more sufficient sureties, to be approved by the clerk of the 
appellate court making the order, to the effect that if judg- 
ment be rendered, against the appellant, and execution 
thereon be returned unsatisfied, in whole or in part, the sure- 
ties will pay the amount unsatisfied, together with all costs 
awarded against the appellant. 

$543.— Same, delivery aid service of order, on whom. 

A delivery of a certified copy of the order mentioned in 
section five hundred and forty-one to the Justice of the Peace, 
••shall stay the issuing of the execution on the judgment; if 



196 THE CODE OF 

it have been issued, the service of a certified copy of such 
order on the officer holding the execution, shall stay further 
proceedings thereon. A certified copy of such order shall 
also be served on the respondent, or his agent or attorney,, 
within ten days after the making thereof. 

§544.— Restitution. 

If the judgment appealed from, or any part thereof, be 
paid or collected, and the judgment be afterwards reversed,, 
the appellate court shall order the amount paid or collected 
to be restored, with interest from the time of such payment 
or collection. The -order may be obtained on proof of the 
facts made at or after the hearing of the appeal, on a previ- 
ous notice of six days. If the order be obtained before the 
judgment of reversal is entered, the amount may be included 
in the judgment. 
$515. — Costs, how awarded. 

If the judgment be affirmed, costs shall be awarded to the- 
respondent; if reversed, costs shall be awarded to the appel- 
lant; if affirmed in part, the costs may be awarded to either 
party in the discretion of the court. 



CHAPTER VII. 

GENERAL PROVISIONS RESPECTING JUSTICES OF THE PEACE. 

^546. — Within what time to qualify. 

Every person elected or appointed a Justice of the Peace., 
shall, within ten days after such election or appointment^ 
take and subscribe the prescribed oath of office before the 
Clerk of the Superior Court; which oath shall be filed by 
the Clerk of said Court. And any person presuming to exe- 
cute the office of a Justice of the Peace without qualifying 
as herein directed, shal! be guilty of a misdemeanor. 



CIVIL PROCEDURE. 197 

■%M1. — Removal oat of township six months to forfeit office. 

When any Justice of the Peace removes out of his town- 
ship and does not return therein for the space of six months, 
he shall forfeit and lose his office ; and any such Justice of 
the Peace presuming to act thereafter, contrary to the pro- 
visions of this section, unless re-elected or re-appointed, shall 
be guilty of a misdemeanor. 

$548. — Resignation. 

Justices of the Peace wishing to resign, must deliver their 
letters of resignation to the Clerk of the Superior Court, who 
shall file the same. 

$549.— May issne process and try canses, where. 

A Justice of the Peace may issue a summmons or other 
piocess anywhere in his'county, but he shall not be com- 
pelled to try a cause out of the township for which he was 
•elected or appointed. 

§550.— Office nnder the United States. 

Any Justice of the Peace may accept a civil office or 
appointment of trust or profit, under the authority of the 
United States, the duties of which confine him to the county 
where he is resident. 

-$551. — Punishment on conviction of infamous crimes, &c. 

Upon the conviction of any Justice of the Peace, of an 
infamous crime, of corruption and malpractice in office, he 
•shall be removed from office, and he shall be disqualified 
from holding or enjoying any office of honor, trust or profit 
•under this State. 

§552.— Filing dockets with Clerks. 

Each Justice of the Peace, as often as he has filled his 
docket, shall file the same with the clerk of the Superior 
Court for his county. 

§553. — Delivery of unfilled docketto successor. 

When a vacancy exists, from any cause, in the office of a 
Justice of the Peace, whose docket is not filled, or when such 



198 THE CODE OF 

Justice goes out of office by expiration of his term, sucb 
former Justice, if living, and if dead, his personal represen- 
tative, shall deliver such docket and all official papers to his 
successor, who is authorized to hear and determine any 
unfinished cause or causes on said docket, in the same man^ 
ner as if such cause or causes had been originally brough t 
before such successor. 

$551. — Filing and delivery — how enforced. 

The duty imposed on the Justice,, or his personal repre- 
sentative by the last two preceeding sections may be- 
enforced, on ten days' notice in writing to such Justice or 
his Representative; by attachment. 



TITLE XXI. 



FEES. 



Chapter 


I. 


General Provisions. 


(< 


II. 


Fees of Solicitors. 


H 


III. 


Fees of Clerks of Superior Courts. 

1. In Civil Actions.. 

2. In Criminal Actions. 


(( 


IV. 


Fees of Registers of Deeds. 


t< 


V. 


Fees of Sheriffs. 


(' 


VI. 


Fees of Coroners. 


Ci 


VII. 


Fees of Justices of the Peace. 


(( 


VIII. 


Fees of Constables. 


a 


IX. 


Fees of Jurors. 


a 


X. 


Fees and salaries of Clerks of the Supreme Court. 



CHAPTER I. 



GENERAL PROVISIONS. 



§555. — Fees of officers by whom and how payable. 

The several officers hereinafter named, shall receive the- 
fees hereinafter prescribed for them respectively, from the- 



CIVIL PROCEDURE. 199 

persons for whom, or at whose instance, the service shall be 
performed, except^ersons suing as paupers ; and no officer 
shall be compelled to perform any service, unless his fees be 
paid or tendered. The said officers shall receive no extra 
allowance or other, compensation whatever, unless the same 
shall be expressly required by some statute. In case the 
service shall be ordered by any proper officer of the State, 
or of a county, for the benefit of the State or county, the 
fees need not be paid in advance ; but if for the State, shall 
be paid by the State, as other claims against it are , if for a 
county, by the County Commissioners, out of the county 
funds. 

§556i — Copy sheet de fined. 

A copy sheet shall consist of one hundred words. 

§557. — Fees on returns to Secretary of State. 

All officers required by law to make returns to the Secre- 
tary of State, shall receive for such returns five cents per 
copy sheet, to be audited on the certificate of the Secretary 
of State, and paid as other claims against the State are 
required to be. 

§558.— Officers to make return of fees. 

Every officer authorized to receive fees, shall, during the 
first week in September in every year, report to the Secre- 
tary of State, according to a form to be prepared "ami fur- 
nished by him, a sworn statement of all fees received, or 
which might have been received by him, during the year 
next preceeding the first day of September exclusive. For 
this report no fee shall be allowed. 

§559* — Clerks to furnish blank writs. 

Clerks of Courts shall furnish to parties printed copies of 
the formal parts of all writs required to be issued by them? 
with convenient blank spaces for the insertion of written 
matter; and also the blank forms of such bonds as are 
required to be taken by them. 



200 THE CODE OF 

§560. — Who to pay costs In criminal actions. 

If a defendant be acquitted, or judgment against him 
arrested, the costs, including the fees of all witnesses sum- 
moned and actually examined for the accused, whom the 
Judge before whom the trial took place, shall certify to have 
been necessary or proper for his defence, shall be paid by 
the prosecutor, if any be marked on the bill, unless the 
Judge shall certify that there was reasonable ground for the 
prosecution, and that it was required by the public interest 
If there be no prosecutor, or if the Judge shall certify as afore- 
said, the costs shall be paid by the county in which the bill 
was found. 

$561.— -Half fees If convict insolvent. 

The costs in criminal actions shall in all cases be paid by 
the person convicted, it he be able; but if he be not able, 
the county where the bill was found shall pay the costs of 
the prosecution only; and in that case the public officers 
shall receive only half the fees otherwise allowed. 

$562.— How fees of offieers received. 

If any officer to whom fees are payable by any person, 
shall fail to receive them at the time the service is performed 
he may have judgment therefor on motion to the court in 
which the action is or was pending, upon twenty days 
notice to the person to be charged, at any time within one 
year after the determination of the action in which the same 
was performed, if the motion for judgment be in behalf of 
the Clerk of the Superior Court, it shall be made to the 
Judge of the Court in or out of terms. 



CHAPTER II. 

FEES OP SOLICITORS. 

§563. — When to receive fees — salary • 

The Solicitor shall receive no fees, except in case of judg- 
ment rendered against the accused; unless in cases where, 



CIVIL PKOCEDURE. 201 

upon oonviction, the punishment might have been capital or 
confinement in the penitentiary at hard labor for- six months 
or upwards, and the Judge before whom the action was 
tried, shall certify, immediately after the trial, that there was 
probable ground for the prosecution, andf that the case has 
been conducted fairly and with due diligence. In such case 
he shall receive one-half of his fees from the county in 
which the bill was found, and he shall receive forty dollars 
additional for every attendance on the session of his Court. 

§564. — Solicitor's fees — for what. 

The Solicitors shall receive the following fees : 

1. On every conviction for murder, twenty dollars. 

2. On every conviction where, by law the punishment 
may be hard labor in a Penitentiary for one year or over, 
ten dollars. 

3. On conviction on any other indictment, four dollars. 

4. On final judgment against a defaulting witness or juror 
where no issue is joined, two dollars. 

5. On such a judgment when contested, four dollars. 

6. Judgment on undertaking of bail a or recognizance, if 
uncontested, two dollars. 

7. On the same if contested, four dollars. 

8. On application to renew bond to keep the peace, if 
granted, one dollar. 

9. On an issue in bastardy — found against the putative 
father, four dollars. 



CHAPTER III. 

THE FEES OF CLERKS OP THE SUPERIOR COURTS. 

$565. — What fees and for what. 

The Clerks of the Superior Court shall be entitled to the 
following fees: 



202 THE CODE OF 

I.— IN CIVIL CASES. 

1. Furnishing blank writ of summons or other writ or 
process required to be issued by him and taking a bond from 
the plaintiff as security for costs or receiving a deposit from 
plaintiff and giving a certificate to him and the defendant, 
fifty cents. 

2. Docketing summons, five cents. 

3. Recording a return of a sheriff or other ministerial offi- 
cer, ten cents. 

4. Receiving, filing, and noting on the docket, any plead- 
ing or demurrer, and delivering copies filed, to the parties to 
whom addressed, ten cents. 

5. Order enlarging, or refusing to enlarge, time for plead- 
ing, or for any other act where authorized, fifty cents. 

G. Making order of publication where allowed, fifteen 
cents. 

7. Entering judgment against either party in default of a 
plea, one dollar. 

8. Judgment on any question authorized to be decided by 
him, if there be no appeal to the Judge, or if the judgment 
of the clerk be confirmed on the appeal, one dollar. 

9. Preparing statement of case on appeal from his decis- 
ion to the Judge if the decision shall be confirmed, one 
dollar. 

10. Transcript of record for Judge on issue of law joined 
on the pleadings, per copy sheet, ten cents. 

11. Acknowledging receipt of decision of Judge, and 
notifying each attorney thereof, ten cents. 

12. Taking an affidavit except to a witness or juror's ticket 
of attendance, fifteen cents. 

13. Taking affidavit to witness or juror's ticket, ten cents. 

14. Transcript of case and record for Supreme Court, per 
copy sheet, ten cents. 

15. Mailing transcript, post paid, fifteen cents. 

16. Docketing anyjudgment on Execution docket, twenty- 
five cents. 

17. Affixing seal of court when necessary, twenty-five 
cents. 



CIVIL PROCEDURE. 20a 

18. Entering on record any order or judgment of the 
Judge, on' a matter which he has jurisdiction to decide out 
of term, if not more than one copy sheet, twenty-five cents. 

If more than one copy sheet, for every copy sheet over the 
first, ten cents. 

19. Entering on the docket a brief of any complaint, plea,, 
demurrer or motion, five cents. 

20. Entering general verdict, five cents. 

21. Enteiing special verdict by copy sheet, ten cents. 

22. Entering appeal taken, five cents. 

23. Issuing subpoena for witnesses, each name, ten cents. 

24. Swearing a witness, five cents. 

25. Copy of any record or writing in his office, per copy 
sheet, ten cents. 

26. Probate or acknowledgment of a deed or writing of 
any sort authorized to be proved, (except where the private 
examination of a married woman is taken, for each grantor 
therein, fifty cents. 

27. Probate or acknowledgment of deed or other writing 
and taking private examination of married women, with 
certificate thereof, one dollar. 

28. Probate of a will in common form, with certificate and 
issuing, letters testamentary, one dollar. 

29. Recording will, return or report of executor, adminis- 
trator, guardian or other trustee required to be recorded ;: 
per copy sheet, ten cents. 

30. Grant of letters of administration of any sort, and 
taking bond of administration, one dollar. 

31. Every notice required to be issued by Clerk, ten cents. 

32. Grant of guardianship, including taking of bond; for 
each minor, fifty cents. 

33. Apprenticing infant, including indenture, fifty cents. 

34. Entering caveat on contested will, twenty cents. 

35. Recording articles of agreement of proposed corpora- 
tion, including all services, two dollars. 

36. Issuing commission of any sort, fifty cents. 

37. Entering return to commission and order for registra- 
tion of deed, ten cents. 



204 THE CODE OF • 

38. Auditing account of executor, administrator, guar- 
dian, or other trustee, required to return accounts, one per 
cent, on the nett amount returned, if not over three hundred 
dollars ; three fourths of one per cent, if over three hundred 
and not over one thousand dollars; one-half of one per 
cent, if over one thousand and not over twenty thousand 
dollars; one sixth of one per cent, if over twenty thousand 
dollars. 

39. Justification of sureties, fifty cents. 

40. Issuing marriage license and making the record re- 
quired thereof, fifty cents. 

41. Entry of birth or death when required to be made, 
five cents. 

II.— ES CRIMINAL ACTIONS. 

42. Issuing capias — for each person to be arrested, fifty 
'ce'nts. 

43. Docketing action, and entering return, ten cents. 

44. Taking a recognizance, ten cents. 

45. Issuing subpoena — for each witness, ten cents. 

46. Entering judgment against a defaulting juror or wit- 
ness or on a bail bond or recognizance, fifty cents. 

47. Entering verdict and judgment, one dollar. 

48. Issuing execution, twenty-five cents. 

49. Justification of bail or sureties to an appeal, fifty 
•cents 

50. Affidavit except to witness or juror's ticket twenty- 
oents. 

51. Affidavit to witness or juror's ticket, ten cents. 

52. Affixing seal when necessary, twenty-five cents. 

53. Transcript on appeal — as in civil cases. 

54. Mailing transcript as in civil cases. 



CIVIL PROCEDURE. 205 



CHAPTER IV. 

FEES OF REGISTERS OF DEEDS. 

$566.— Specification. 

The Register of Deeds shall be entitled to the following 
prescribed fees : 

1. Registering any deed or other writing authorized to 
be registered or recorded by him, with certificate of probate 
or acknowledgment and private examination of a married 
woman if any, if not more than one copy sheet,- one dollar. 

2. For every copy sheet more than one, three cents. 

3. For a copy of any record or paper in his office ; per 
copy sheet, three cents. 

4. For issuing each notice or order required by the county 
Commissioners, including subpoenas for witnesses; for each 
name, fifteen cents. 

5. Recording each order of Commissioners if not over 
one copy sheet, twenty cents. 

6. If over one copy sheet, for every one over, three cents. 

7. Making out tax list, for each name on each copy 
required to be made, three cents. 



CHAPTER V. 



FEES OF SHERIFFS. 



§567.— Specification. 

The Sheriffs shall be entitled to the following fees for the 
acts herein specified : 

1. Executing summons, or any other writ or notice, simply 
by delivering a copy to the party or his attorney, sixty 
cents. 



206 • THE CODE OF 

2. Per mile, travelling from Court House of his county to 
place of service, if out of the county town, and where imme- 
diate service is not required, five cents. 

3. As above, where immediate service is required, ten 
cents. 

4. Arrest of a defendant in a civil action and taking bail, 
including attendance to justify, and all services connected 
therewith, two dollars. 

5. Arrest of person indicted, including all service con- 
nected with the taking and justification of bail, one dollar. 

6. Imprisonment of any person in a civil or criminal action, 
fifty cents; and release from prison, thirty cents. 

7. Executing subpoena on a witness without mileage, 
twenty-five cents. 

8. Conveying a prisoner to jail, if one mile or less, fifty 
cents. 

9. If over one mile, then per mile beyond the first, for 
prisoner, sheriff and guard, if any necessary, and approved 
by County Commissioners — per mile for each, ten cents. 

10. Expense of guard and all other expenses of convey- 
ing prisoner to jail, or from one jail to another for any pur- 
pose, or to any place of punishment — whatever may be 
allowed by the Commissioners of the county in which the 
indictment was issued. 

11. Feeding prisoners in the county jail per day — to be 
fixed by the Commissioners of the county. 

12. Providing prisoners in county jail with suitable beds, 
bed clothing, other clothing and fuel, and keeping the prison 
and grounds cleanly — whatever shall be allowed by the Com- 
missioners of the county. 

13. Collecting fine and costs from convict, two and a half 
per cent, on the amount collected. 

14. Collecting executions for money in civil actions — two 
and a half per cent, on the amount collected. 

15. Advertising a sale of property under execution, at each 
public place required, fifteen cents. 

16. Seizing pecific property under order of a court, or 
Judge, or executing any other order of a court or Judge not 
specially provided for; to be allowed by the Judge. 



CIVIL PROCEDURE. 207 

17. Taxing any official bond, including furnishing the 
blank, fifty cents. 

18. The actual expense of keeping all property seized 
under process or order of court; to be allowed by the court. 

19. A capital execution, including the burial of the body, 
twenty-five dollars. 

20. Summoning a grand or petit jury for each man sum- 
moned, thirty cents. 

21. Serving any writ or other process, with the aid of the 
county, or arresting any criminal, three dollars, and all 
necessary expenses incurred thereby. 

22. All just fees paid to any printer for any advertisement 
required to be printed by the sheriff. •• 

23. Bringing up a prisoner upon a habeas corpus to testify 
or answer to any court or before a Judge, one dollar, and all 
necessary expenses. 



CHAPTER ,VI. 

FEES OF CORONERS. 

§568t— Specification. 

Coroners shall be entitled to fees as follows: 

1. Coroners shall receive the same fees as are or shall be 
allowed sheriffs in similar cases. 

2. For holding an inquest over^dead body, inclitding the 
summoning the jury and return in glkfe verdict — if finished 
in one day, ten dollars. 

3. For every additional day occupied in the investigation 
of the case, five dollars. 

4. For summoning each witness on inquest, fifteen cents. 

5. For burying a pauper over whom an inquest has been 
held, to be paid by the county. 

6. The fees in cases numbered one, two, and three shall 
be paid by the county if the deceased be a pauper, otherwise 
by his personal representatives. 



208 THE CODE OF 

CHAPTER VII. 



FEES OF JUSTICES OF THE PEACE. 

§369.— Specification. 

Justices of the Peace shall be entitled to receive the fol- 
lowing fees: 

For attachment or transcript of a judgment, twenty-five 
cents. 

For summons, fifteen cents. 

For adjournment or continuance, ten cents. 

For subpoena or order for witnesses including all the 
names inserted therein, twenty-five cents. 

For filing every paper^necessary to be filed, five cents. 

For trial of an^issue, fifty cents. 

For entering judgment, twenty -five cents. 

For taking affidavit, bonder undertaking, five cents. 

For drawing or taking affidavit, bond or undertaking, per 
copy sheet, ten cents. 

For receiving and entering verdict of jury, twenty-five 
cents. 

For execution, twenty-five cents. 

For renewal of execution, ten cents. 

For making a return to an appeal, one dollar. 

For order of an arrest in a civil action, twenty-five cents. 

For warrant for apprehension of any person charged with 
crime, or with being the father of a bastard, fifty cents. 

For entering judgment for a contempt, fifty-cents. 

For execution of such judgment, twenty-five cents. 

For warrant of commitment for any cause, twenty-five 
cents. 

For order for a commission to take testimony, fifty cents. 

For taking deposisions on an order or commission issued 
by some court, per copy sheet, ten cents. 

For making necessary return and certificate thereto, fifty 
cents. 



CIVIL PROCEDURE. 209 

In civil actions where the sum recovered before the Justice 
exceeds one hundred dollars, the above fees shall be increased 
fifty per cent. 



CHAPTER VIII. 



FEES OF CONSTABLES. 



£570. — Like those of sheriff. 

The fees of constables shall be the same as those for 
sheriff, for the like services. 



CHAPTER IX. 



FEES OF JURORS. 



§571. — Pay and mileage. 

1. Jurors to the Superior Courts, per day, what shall be 
allowed by the County Commissioners of the County, not 
exceeding two dollars and fifty cents. 

2. Per mile of travel coming to, and returning from court, 
five cents. 

3. The same pay and mileage shall be allowed to special 
jurors and the same pay, without mileage, to tales jurors. 



CHAPTER X. 

FEES AND SALARIES OF CLERKS OF THE SUPREME COURT. 

§572. — To remain as heretofore. 

The salary and fees of the Clerk of the Supreme Court 

shall be as provided by section twenty-five, chapter one 

hundred and two, of the Revised Code of this State. 
14 



210 THE CODE OF 

TITLE XXII. 

OF THE PRINTING OF THE CODE OF CIVIL PROCEDURE. 

§573. — Code as printed under supervision of Commissioners, evidence of the law. 
The Cornmississiouers appointed, " to prepare a Code of 
Practice and Procedure in the different courts of this 
State," shall cause to be printed under their supervision, four 
thousand copies of this, act, entitled " The Code of Civil 
Procedure," including the Act concerning the jurisdiction of 
Justices of the Peace; the Act concerning the powers and 
duties of Clerks of the Superior Courts as Judges of Pro- 
bate, and and the Act fixing the fees of the clerk, sheriff 
and other public officers, which are parts of said Code, and 
the copies thus printed, shall be received as evidence of the 
law before all tribunals, and in all places, in the same 
manner, and with the same effect as the original in the office 
of the Secretary of State. 

§574. — Copies, how distributed. 

The said copies shall be distributed by the Secretary of 
State, as follows : 

1. To the library of the Congress of the United States; 
five copies. 

2. To each of the several State and territories; three. 

3. To the library of the University of North Carolina; 
three. 

4. To the Governor and the members of his council, for 
the use of their respective offices; each two copies. 

5. To each member of the General Assembly, to each 
Justice of the Supreme Court, to each Judge of the Superior 
Court, to each Clerk of the Superior Court; one copy. 

6. To each Commissioner of the Code; five copies. 

7. To each Justice of the Peace ; one copy. 

8. Three hundred shall be exposed for sale, at a price not 
exceeding' cost,' to be fixed by the Secretary of State, for the 
.benefit of the State. 



CIVIL PROCEDURE. 211 

9. The residue, and the copies which shall remain unsold 
at the end of two years, shall be deposited in the library of 
t he State. 



TITLE XXIII. 

RATIFICATION OF STATUTES COMPOSING THIS CODE. 

$575.— Date of Ratification. 

The various Statutes of which the Code of Civil Procedure 
is composed, take effect from the date of ratification, as 
follows : 

I. — The first part of the Code of Civil Procedure embrac- 
ing Titles I, III, IV, V, VI, VII, and the greater part of 
Title VIII, of this Code, was ratified on the eighteenth day 
of August, A. D., 1868 ■ ' 

II. — An Act entitled, " An Act concerning the powers and 
duties of Clerks of the Superior Court," constituting Title II, 
and Chapter V, of Title VIII, N of the Code of Civil Procedure, 
was ratified on the fourteenth day of August, A. D., 1868. 

III. — The second part of the Code of Civil Procedure 
embracing Titles IX to XVIII inclusive and Title XXII, was 
ratified on the twenty-fourth clay of August, A. D., 1868. 

IV. — An Act entitled, "An Act concerning the powers 
and duties of Clerks of the Superior Courts, as Judges ot 
Probate," constituting Title XIX, of the Code of Civil Pro- 
cedure, was ratified on the nineteenth day of August, A. D., 
1868. 

V. — An Act in relation to the courts of Justices of the 
Peace, being Title XX, of the Code of Civil Procedure, was 
ratified on the twenty-fourth day of August, A. D., 1868. 

VI. — An Act in relation to the fees of certain officers, 
being Title XXI, of the Code of Civil Procedure, was ratified 
on the twenty-fourth day of August, A. D., 1868. 



Ordinance of the Convention. 



AN ORDINANCE OF THE CONVENTION OF 1865 AND 1866, ENTITLED 
"AN ORDINANCE RESPECTING THE JURISDICTION OF THE COURTS OF 

THIS STATE," RATIFIED JUNE 23, 1866, AMENDED ANDRE-RATIFIED 

BY THE CONVENTION OF 1868, MARCH 14, 1868. 

[Given as Amended.] 

[Sections one and two are part of the amendments of 1808.] 
Section 1. Be it ordained by the people of North Carolina 
in Convention assembled, That sections one and two of the 
Ordinance of the Convention adopted June 23d, 1866, en- 
titled " An Ordinance to change the jurisdiction of the 
courts and the rules of pleading therein," be and are hereby, 
repealed. 

Sec. 2. Be it further ordained, That section three of the 
above entitled ordinance be amended to read as follows : 
Sec. 3. That all actions of debt, covenant, assumpsit and 
account now pending in the Superior Courts shall be con- 
tinued to Spring Term, 1869, and that the several Superior 
Courts at the Spring Term thereof only, unless otherwise 
^erein provided, shall have exclusive original jurisdiction 
of all such causes of action except where jurisdiction has 
been or shall be given to a Justice of the Peace by the 
Constitution or laws of North Carolina. Should the defen- 
dant at the Spring Term, 1869, on writs which shall be 
returned to that Term or in any suit, for the above causes 
of action then pending in the Superior Court, pay or confess 
j udgment to the plaintiff for one-tenth of the debt, and 
demand principal and interest and all costs to that time, he 
shall be allowed until next Spring Term to plead. At the 
said Spring Term should the defendant pay to the plaintiff 



214 ORDINANCE. 

or confess judgment for one-fifth of the residue of the said 
debt or demand and cost, he shall be allowed until the suc- 
ceeding Spring Term to plead. At the said Spring Term 
should- the defendant pay to the plaintiff or confess judg- 
ment for one-half of the residue of the debt or demand, he 
shall be allowed until the succeeding Spring Term to plead. 
At the said Spring Term the plaintiff shall have judgment 
for the residue of his debt or demand: Provided however,. 
That the plaintiff, if required, shall file his debt or demand 
in writing, and if the defendant shall make oath that the 
whole or any part thereof is not justly due, or that he has a 
counter demand, all of which shall be particularly set forth 
by affidavit, then the defendant shall only pay the install- 
ment required of what he admits to be due, and the court 
shall order a jury at the same or some subsequent term to 
try the matters in dispute between the parties, and at the 
next Spring Term the defendant shall be allowed time to 
plead only upon paying or confessing judgment for one-fifth 
of the residue of the admitted amount, and whatever the 
jury finds him indebted over and above the same : Provided 
further, That should the defendant fail to pay or confess 
judgment for the first or any subsequent installment, then 
and in that case the plaintiff shall be entitled to proceed to 
judgment and execution for such installment, unless the 
defendant shall put in pleas, in which case the suit shall 
proceed according to the course of the court in 1860 : Pro- 
vided further. That by consent of the plaintiff the defen- 
dant at any term of the court may confess judgment for a 
stipulated sum in full and final discharge of all further 
demand or liability upon such claim. 

[Sections three to eight inclusive are of the original Ordinance un- 
amended.] 

Sec. 3. Be it further ordained, That all writs in actions of 
debt, convenant, assumpsit or account, issued to Fall Term 
of the Superior Courts, shall be returned by the Sheriffs to 
Spring Term, 1867, and all actions of debt, convenant, 
assumpsit or account, now pending in the Superior Courts, 
shall be continued to Spring Term, and if the defendant has 



ORDINANCE. 215 

entered his plea, he shall be allowed to withdraw the same, 
and take the benefits of section three, of this ordinance. 

Sec. 4: Be it further ordained, That dormant judgments 

shall only be revived by actions of debts, and every scire 

facias to revive a judgment shall be dismissed on motion : 

Provided, That those now issued shall be dismissed at the 

cost of the debtor. 

Sec. 5. Beit further ordained, That the Clerks of the several 
County Courts shall transfer all actions of debt, convenant, 
assumpsit or account, now pending in their respective 
Courts, to the Spring Term, 1867, of the Superior Courts, and 
the said Spring Term shall be deemed the return term 
thereof, and the said actions shall stand as if originally insti- 
tuted in that Court. 

Sec 6. Be it further ordained, That the Clerks of the 
several County Courts, if requested to do so by the plaintiffs, 
sixty days before the Spring Term, j[18G7, of the Superior 
Courts, shall transmit to said Spring Terms certified copies 
of the judgments in actions of debt, convenant, assumpsit or 
account entered on the dockets of their Courts, together 
with the writs of fieri facias or venditioni exponas issued 
thereon, and shall issue notices thereof to the defendants, 
which notices shall be served at least thirty days before said 
Superior Courts. At the Spring Terms aforesaid, the Courts 
shall, on motion, order the said judgments to be entered on 
the minute dockets: Provided, The same were not dormant 
when transmitted from the County Courts; and on 8uch 
entries being made, the said judgments shall be taken and 
held to be judgments of the Superior Courts and writs of 
fieri facias and venditioni exponas may issue, as provided in 
section tenth of this Ordinance, following the writs trans- 
mitted from the County Courts and preserving the liens, as 
if issued by the same Court. 

Sec. 7. Be it further ordained, That the Sheriff in each 
county shall return all writs of fieri facias and venditioni 
exponas issued from the County Court on judgments in 
actions of debt, convenant, assumpsit or account to the nest 



216 ORDINANCE. 

term ol said Court, without sale ; and shall return all writs 
of fi. fa. or venditioni exponas issued on similar judgments 
from the Superior Court or decrees of the Court of Equity 
on money demands to Spring Term, 1867, without sale. 

Sec. 8. Be it further ordained, That no writs of fi. fa. or 
venditioni exponas on judgments in actions of debt, convers- 
ant, assumpsit or account shall hereafter issue from the 
County Courts, nor shall said writs on such judgments issue 
from ov to the Fall Terms of the Superior Courts, except in 
cases where defendant fails to comply with the provisions 
of this Ordinance, and it is directed that plaintiff may pro- 
ceed according to the regular course of the Court. 

[Sections nine and ten are part of the amending- Ordinance of 1868.] 

Sec. 9. Be it further ordained, that section ten of the alove 
recited act shall be amended to read as follotcs : That execu- 
tions on judgements in actions of debt", assumpsit, covenant 
or account, or decrees for money demands in equity, which 
have been, or shall be issued on judgments or decrees here- 
tofore obtained, shall be levied on the property of the defen- 
dant and returned without sale: Provided, such return shall 
not prejudice any lien the plaintiff may acquire or then 
have by virtue of said fi. fa. or venditioni exponas. At Spring 
Term, 1869, execution on all such judgments or decrees shall 
issue for only one-tenth of the amount then due; at Spring 
Term, 1870, for one-fifth of the residue; at Spring Term, 
1871, for one-half of the residue, and at Spring Term, 1872, 
for the balance of the debt; and no execution shall issue 
from the fall Term on any such judgment or decree except 
by consent of the defendant. That no mortgagee or trustee 
shall expose to sale the property conveyed in such mortgage 
or trust deed, without consent of the grantor, before first of 
March, 1869. Should the mortgagor or trustor at that time 
pay one-tenth of the debts mentioned, the sale shall be 
postponed to first of March, 1870; at that time should the 
mortgagor or trustor pay one-fifth of the residue, the sale 
shall be postponed to* the first of March, 1871; at that time, 
should the trustor or mortgagor pay one-half of the residue, 



ORDINANCE. 217 

the sale shall be postponed to first of March, 1872, and at 
that time the trustee or mortgagee shall sell the property or 
so much of it as will realize the balance of the debts; Pro- 
vided, however, That should the trustor or mortgagor fail to 
pay the first or any subsequent installment, then, and in 
that case, the trustee or mortgagee shall sell at sis months 
credit so much of the property conveyed as will realize such 
installment. 

Sec. 10. Be it farther ordained, that section eleven of the 
above entitled act he amended to read asfoUoivs : That no war- 
rant before Justices of the Peace shall issue or be returna- 
ble until January 1st, I860. Should the defendant upon 
such return pay to the plaintiff, or to the collecting officer, 
for his use, or confess judgment before the magistrate for 
one-tenth of the debt and demand, (principal and interest) 
he shall be allowed twelve months to plead; at the expira- 
tion of that time, should the defendant pay to the plaintiff 
or confess judgment for one-fifth of the residue of the said 
debt or demand, he shall be allowed twelve months more to 
plead; at the expiration of that time should the defendant 
pay to the plaintiff or confess judgment for one-half of the 
residue of said debt or demand, he shall be allowed twelve 
months more to plead; at the expiration of that time the 
plaintiff shall have judgment for the residue of his debt or 
demand: Provided however, That the plaintiff, if required, 
shall file his claim in writing, and if the defendant shall 
make oath that the whole or any part thereof is not justly 
due, or that he lias a counter demand, all of which he shall 
particularly set forth by affidavit, then the defendant shall 
only pay the installment required heretofore recovered upon 
any such bond, promissory note, bill of exchange or other 
instruments of writing or parol promise as is hereinbefore 
mentioned. 

[Section's eleven to twenty-four inclusive are from the original Ordinance 
unamended.] 

Sec 1 1. Be it farther ordained, That all writs of scire facias 
to subject bail, issued from the Superior or County Courts 
upon judgments in actions of debt, convenant, assumpsit or 



218 ORDINANCE. 

account, shall be returned to Spring (.Term, 1S67, of the- 
Superior Courts, and should the tenth, fifth, and half of the 
judgments be paid from Spring Term to Spring Term, time 
to plead shall be allowed, according^to section three of this 
Ordinance. 

Sec. 12. Be it further ordained, That this Ordinance shall 
not apply to judgments for costs only. 

Sec 13. Be it further ordained, That this Ordinance shall 
not apply to the remedies for the collection of town, county 
or State Revenue. 

Sec. 14. Be it further ordained, That this Ordinance shall 
not apply to proceedings by attachment, unless the defen- 
dant replevy and give bail, and then and in that case the 
procedings shall be subject to the provisions of this Ordi- 
nance as if commenced by writ or warrant. 

Sec 15. Be it further ordained, That where the action is 
by or on behalf of infants, still minors at the return term, 
and the interest exceeds one-tenth, the first payment shall 
be increased to the amount of interest due, not to exceed 
one-fifth of the whole debt. 

Sec 16. Be it further ordained, That the provisions of this 
Ordinance shall not be construed to extend to any debts or 
demands contracted, or penalties incurred, since the first day 
of May, A. D., 1865, or which may be hereafter contracted 
or incurred, but that the remedies for the recovery of the 
same shall be in all respects similar to the remedies for the 
recovery of debts which were in force in the year 1860. 

Sec 1.7. Be it further ordained, That any creditor, 
attempted to be defrauded as set forth in section one, chapter 
fifty, Revised Code, may, without obtaining judgment at 
law, file his bill in Equity, and said Court is hereby author- 
ized and empowered to direct proper issues to be made up 
and tried, and to make such orders and decrees as to right 
and justice may appertain ; and said proceeding shall not 
affect the creditor's right to proceed at the same time at law; 
and any surety, before paying the debt of his principal thus 
attempting to defraud his creditors, may institute proceed- 
ings in Equity, in like manner, to the end that he may obtain 
relief. 



ORDINANCE. 219 

Sec 18. Be it farther ordained, That every executor, or 
administrator, shall file on oath, at the termination of two 
years from the time of his qualification a full statement of 
his receipts and disbursements and the condition of the 
assest, particularly setting all money collected and how 
disbursed, and on motion the court may allow further time, 
to settle the estate from year to year not exceeding three 
years; Provided, That on motion to extend the time a sup- 
plemental statement shall be filed: Provided, That any 
creditor or next of kin may oppose said motion, and if the 
statement is not full and fair, file interrogatories which the 
executor, or administrator, shall answer before his motion 
for time is allowed: Provided further, That the court may 
also extend the- time for pleading: Provided farther, That 
all executors, or administrators, who have heretofore 
qualified shall be allowed until the County Court, next after 
the first day of January 1867, to file their statement. 

Sec 19. Be it farther enacted, That all Acts and parts of 
Acts, suspending the operation of the Statutes of Limitation 
in the Revised Code', are hereby repealed except as herein 
provided: Provided, That the time lapsed since the first 
day of September, one thousand eight hundred and sixty- 
one, barring actions or suits, or presuming the satisfaction 
or abandonment of rights shall not be counted. Provided 
farther, That nothing contained in this Ordinance or in the 
Acts hereby repealed shall be so construed as to prevent 
judgment from becoming dormant. 

Sec 20. Be it further enacted, That any sheriff, clerk or 
other officer, failing to execute any of the provisions of this 
Ordinance when the execution thereof devolves on him, or 
issuing, receiving, or executing, any process whatever, con- 
trary to the provisions of this Ordinance, shall be subject to 
a penalty of five hundred dollars to be recovered by a rule 
of court as penalties and fines were recovered in 18G0. 

Sec 21. Be it further ordained, That in all actions brought 
by any bank or other corporation, having exercised bank- 
ing privileges, or by an assignee or indorsee, or officer of 



220 ORDINANCE. 

said county or corporation it shall and may be- lawful for 
the defendant to set-off by plea, or on trial any note or cer- 
tificate of deposit issued by said bank or its branches, or other 
corporation, whether the same has been presented for pay- 
ment or not, any law or usage to the contrary notwithstand- 
ing; but said plea of set off, or set off on trial, shall not 
avail to carry costs against the plaintiff, unless there has 
been a tender of such payment before suit brought: Pro- 
vided, That should the defendant require the debt to be 
scaled according to the scale of depreciation of Confederate 
currency, then, and in that case, the said notes or certificates 
of deposit shall not be a set off in any manner. 

Sec. 22. Be it farther ordained, That " An Act to change 
the jurisdiction of the Courts, and the rules of pleading," 
ratified the 11th day of September, 18G1; an Act entitled 
"An Act to restore the Courts and for other purposes," 
ratified the 14th December, 1863; also, an Act entitled "An 
Act to change the jurisdiction of the Courts and the rules 
of pleading therein," ratified the 10th of March, A. D., 1866, 
and all laws in conflict with this Ordinance, be and the 
same are hereby repealed. 

Sec 23. Be it further ordained, That the General Assembly 
shall have no power to repeal, alter or modify this ordinance 
until the third Monday of November, 1868, and this Ordi- 
nance shall take effect and be in force from after its ratifi- 
cation. 

(Ratification of original Ordinance.) 

Adopted by the Convention, June 23d, 1866. 

EDWIN G. READE, President 
J as. II. Moore, Secretary. 
R. C. Badger, Assistant Secretary. 

(Ratification of amended Ordinance.) 

Sec. 24 Be it further ordained, That this Ordinance shall 
be in force from and after its ratification. 
Ratified this 14th day of March, A. D., 1868. 

CALVIN J. COWLES, President 
T. A. Byrnes, Secretary. 



APPENDIX. 



Note 1. — Title I, §8, sub-division three, page 3. This 
section, including subdivision three, passed both Houses of 
the General Assembly, but by some error, this entire sub- 
division was omitted in the bill as finally enrolled and de- 
posited in the office of the Secretary of State. This error 
was not discovered in time to permit its correction. A large 
class of actions is thus left specially unprovided for, though 
it will be seen by consulting section 405, page 149, that it is 
there provided that summons in all new actions coming 
under the provisions of the Act of March 14th, 1868, shall 
be returnable in accordance with its provisions. It is, there- 
fore, clearly shown that it was no part of the intention of 
the General Assembly to repeal the provisions of this Act. 
It was not the intention of the Commissioners to present to 
the Assembly, any provision interfering with any rightful 
delay to which the debtor might -be entitled. Nor is it 
believed that a just construction of this section, even in its 
present mutilated form, will so operate. As it was not pos- 
sible, consistently with the constitutional provisions, to make 
any provisions whereby new actions arising from causes of 
action precedent to the ratification of the Code of Procedure, 
might be governed by former laws, in respect to form, sub- 
division four was so framed as to bring them under the old 
practice so far as possible, or "as near as may be," which the 
Commissioners believe to include everything except form 
and equitable defences, which must of necessity, now be 
allowed, to such actions, as otherwise the respondent would 
be without remedy, the Court of Equity being abolished. 

Note 2.— Title XX, §503, page 184, Rule IV. No record can 
be found in either House of the Geueral Assembly, of any 
amendment by which this Rule was stricken out. It is 
believed to have passed botli Houses and to have been omit- 



222 APPENDIX. 

ted in engrossment by error. If not, it is a confident belief 
of the Commissioners that a provision so important will not 
be allowed to remain unenacted beyond an early day of the 
next session. The mere neglect of the defendant to answer, 
by no means gives the plaintiff the right to recover, and no 
rule can be more important than that which requires the 
plaintiff to prove his right before he recover judgment. 



INDEX. 



ACTION. — Civil constitutional definition of, 
Criminal constitutional definition of, 
Definition of, 
by aliens, 

to be by party in interest, 
by grantee of land, held adversely, 
by executor, trustee &c, 
by or against married woman, 
by administrator, 
for partition of real property, 
for foreclosure of mortgage, &c, 
what causes of, joined in same complaint, 
to recover notes, &c, 
submitting a controversy without, 
for discovery abolished, 
to be dismissed, when in Justice's Courts, 
another, may be brought, 
;o what Code of Procedure applicable, 
commenced before approval of Constitution, 
pending at approval of Constitution, 
pending in County Courts, 
pending in Superior Courts, 
pending in Equity Courts, 
commenced after ratification of Code, 
commenced prior to ratification of Code, 
included within provisions of Ordinance of March 14, 

1868, 
not included withing provisions of Ordinance of March 

14, 1868, 
civil, forms of abolished, 

at l<iw, and suits in Equity, distinction abolished, 
civil, one form of, 

on judgment, when they may be brought, 
limitation of, 
commenced before ratification of Code to be governed by 

former laws of limitation, 
civil, within what period commenced, 
for recovery of real property when commenced, 

15 



'AGE 


SEC. 


1 


Pre. 


2 


Pre. 


2 


2 


19 


44 


21 


55 


21 


55 


22 


57 


22 


56 


22 


57 


23 


59 


23 


59 


47 


126 


75 


210 


120 


315 


126 


331 


183 


501 


183 


502 


2 


8 



3 


8 


9 


12 


9 


12 


9 


12 


10 


14 


10 


16 


10 


16 


11 


17 


11 


18 



226 INDEX. 

PAGE 

ACTION for recovery of real property barred by twenty years 

adverse possession, 
for real property by State, when barred, 
upon entry upon real estate, when commenced, 
other than for real property, time of commencing, 
which must be commenced within ten years after right 

accrue, 
upon judgment or decree of Court of United States, 
upon a sealed instrument, 
for foreclosure of mortgage, 
for redemption of mortgage, 
to be commenced within seven years, 
on a judgment rendered by Justice of the Peace, 
against personal representatives of deceased persons, 
upon official bond of any public officer, 
against executor, administrator, &c, 
for injury to any incorporeal heriditament, 
to be commenced within three years, 
upon contract, &c, 
upon liability created by statute, 
for trespass upon real property, 
for taking, detaining, concealing, &c, real property, 
against sureties of any executor, &c, 
against bail, 

for fees due to any clerk, sheriff or other officer, 
for relief on the ground of fraud, 
to be commenced within one year, 
against sheriff, coroner, constable, &c, 
upon a statute for penalty or forfeiture, 
for libel, assault aud battery or false imprisonment, 
against sheriff or other officer, for escape of prisoner, 
by creditor of any deceased person, 
within six months, 
for other relief, 

by the State, limitation to apply to, 
upon an account current, when cause accrues, 
deemed commenced when 
civil, parties to 

by aliens, time of war not counted, 
existing at the ratification of this Act, 
to be tried where sulyect matter situated, 
for partition of real property, 
for foreclosure of mortgage of real property, 
for the recovery of personal property, 
to be tried where cause of, arose, 
for recovery of penalty on forfeiture, 



13 


23 


11 


18 


13 


24 


14 


30 


15 


31 


15 


31 


15 


31 


15 


31 


15 


31 


15 


32 


15 


32 


15 


32 


15 


33 


15 


38 


15 


33 


1G 


34 


16 


34 


16 


34 


16 


34 


16 


34 


16 


34 


16 


34 


16 


34 


16 


34 


16 


35 


16 


35 


16 


35 


17 


35 


17 


35 


17 


85 


17 


36 


17 


37 


17 


34 


17 


39 


18 


40 


21 


55 


19 


44 


25 


64 


26 


66 


26 


66 


26 


66 


26 


66 


26 


67 


26 


67 



INDEX. 



227 



ACTION agaiust a public officer, 

to be tried where defendant resides, 

for foreclosure of mortgage, 

in particular casea, 

for foreign corporations, when and by whom brought 

in place of scire facias, &c., abolished, 

may be brought by Attorney General, 

to annul a corporation, brought by Attorney General, 

by Attorney General, leave to bring, how obtained, 

upon information or complaint, of course, 

when and how brought to vacate letters-patent, 

for forfeiture of property to the estate, 

for the partition of real property, 

for waste and nuisance, 

for waste abolished. Waste, how remediable. 

to recover debts embraced in stay-law, 

ACKNOWLEDGMENT by partner, &c, 

after statute has barred, 

evidence, against whom, 

must be in writing, * 

by payment of principal and interest, 
ACCOUNTS, annual, 
ACCOUNTINGS by executors, 

by administrators, 

by collectors and guardians, 
ADMINISTRATOR— pendente lift, 

action by, 

qualifications of, 

accounting by, 

failure to account, 

final accounts of, 

ADMINISTRATION.— letters of, 

letters of disqualifications of persons, 

letters of joining persons not entitled, 

letters of renunciation of persons having prior right, 

letters of persons having prior right disqualified, 

letters of what must be ahown on application for, 

contested, 

ADMISSION on inspection of writing, 
ADVERSE possession for twenty years. 
AFFIDAVIT to obtain order, 

an ordei to be delivered to sheriff, 
AFFIDAVITS on motion, 

and its requsites, 

and notice, when and where filed, 



PAGE. 


SEC. 


26 


67 


27 


68 


34 


86 


137 




137 


361 


137 


362 


138 


362 


138 


364 


139 


385 


139 


366 


139 


367 


143 


381 


143 




144 




144 


383 


149 


405 


20 


50 


20 


50 


20 


50 


20 


51 


20 


51 


175 


478 


175 




175 




175 




19 


47 


22 


57 


168 


454 


175 




176 


479 


177 


481 


168 


453 


169 


467 


169 


458 


170 


459 


170 


460 


170 


491 


126 


331 


13 


2 3 


56 


151 


57 


154 


62 


175 


63 


177 


66 


178* 



228 



INDEX. 



AFFIDAVITS copj^of, tojbejserved with injunction, 

on motion, 

entitling, 

definitely entitled, valid 
ALLEGATION not denied,*to bejdeemed true, when 
ALIENS, actions by 
ALLOWANCE, additional^allowance, 

how computed, 

in difficult and extraordinary cases, 
AMENDMENTS of course, after allowance of demurrer, 

by order, 

AMOUNT of costs allowed, 
ANSWER to title, 

APPEARANCE of defendant, voluntary, 
APPEAL from decision of clerk, 

duty of Judge on, 

secured on, 

who may, 

in what cases it may be taken, 

when taken, execution not suspended when, 

to be entered by clerk, on judgment docket, 

when taken and by whom, 
APPEAL — from Justice's Courts, 

when to be taken, 

notice of, on whom served, 

return to the, 
APPOINTMENT of guardian in particular action, 

of guardian upon application of infant, 

of guardian upon application of general [or testamentary 
guardian, 

of guardian upon application of friend, 

APPRENTICE and Master, 

binding to be by indenture, 
for what time bound, 
how compelled to serve, 

APPRENTICED, who may be, 
ARREST and bail, 

in what cases, 

order for,"by whom made, 

security of plaintiff before order of, 

how made, 

vacating order of, or reducing bail, 



PAGE. 


SEC. 


67 


190 


69 


196 


132 




182 


347 


48 


120 


19 


44 


108 


280 


109 


281 


109 


281 


49 


131 


50 


132 


106 


279 


182 


500 


36 


90 


42 


109 


43 


113 


93 


254 


113 


298 


113 


299 


114 


300 


114 


801 


180 


492 


193 


534 


194 


535 


194 


536 


194 


587 


22 


59 


22 


59 


22 


59 


22 


59 


177 




177 


482 


178 


486 


179 


488 


177 


484 


55 




55 


149 


56 


150 


57 


152 


58 


155 


62 


174 



INDEX. 



229 



ARREST and bail in Justices courts 

order for, by whom made, 

affidavit to obtain order for 
ASSAULT and battery, action for, 

ASSIGNMENT of things in action, 

to be without prejudice, 

not to apply to note, bill of exchange, &c. . 
ATTACHMENT of property of foreign corporations, 

of property of non-residents, 

of property absconding or concealed defendants, 

on warrant of, publication to be made, 

interest in corporations, liable to, 

how executed on property incapable of manual|delivery, 

discharge of property and return of proceeds, on 

discharge of 

before Justice of the Peace, 
ATTORNEY, fee bills abolished, 

BAIL, actions against 

how given. 

how proceeded against, 

how exonerated, 

undertaking of, delivered to plaintiff, 

new, notice of justification, 

qualification of, 

justification of, 

allowance of, 

substituting deposit for, 

sheriff when liable as 

sheriff liable to, 

vacating order of arrest or reducing, 
BANK NOTES, limitation not to apply to, 
BANKING COMPANIES, limitations in regard to 
BOND of Superior Court Clerk, 

how approved, &c, 

failure to give, 

to sheriff on attachment, 

official, 

of executor, 

CALENDAR, criminal, first disposed of, 

CANAL companies not barred by limitation, 

CAVEAT, 

CERTIFICATE of defendants, interests to be furnished, 



?AOE, 

189 


SEC, 


189 


513 


189 


514 


17 


35 


21 


55 


21 


55 


21 


55 


69 


197 


69 


197 


69 


197 


70 


198 


73 


206 


73 


207 


76 


212 


76 


213 


190 


516 


105 


275 


16 


34 


58 


157 


59 


160 


59 


160 


59 


162 


60 


163 


60 


164 


60 


165 


60 


166- 


61 


169 


61 


171 


62 


173 


62 


174 


20 


53 


21 


54 


51 


137 


52 


138 


52 


140 


76 


211 


160 


431 


172 


468 


84 


239 


14 


29 


165 


446 



208 



230 



INDEX. 



CIVIL ACTION, constitutional definition of, 

forms of, abolished, 

one form of, 

place of trial, 

manner of commencing, 

manner of the pleadings in, 

forms of pleadings, heretofore existing abolished, 

provisional remedies in, 

of the trial and judgment in, 

disposing of issues in, 

execution of the judgment in, 

miscellaneous proceedings in, 
CLAIMANT under the State, 
CLAIM — counter, 
CLERK— jurisdiction conferred on by the word court, 

of Superior Court, to issue summons, 

of Superior Court, jurisdiction on pleadings, 

decision of — either party may appeal, 

duty of, on appeal prayed, 

of Superior Court, general duties and qualifications 

bond of, 

qualification of, 

failure to give bond, 

where to keep office, when to be open, 

to receive official papers, 

to keep records, &c., 

books to be kept by, 

trial may be postponed by, when, 

to enter judgment on judgment book, 

to enter judgment rendered in other courts, 

to index judgments, 

fees, sheriffs, &c, 

to make copy of judgment-roll and send to Superior Court 
Clerk, 

of Superior Court to transfer existing suits, 

to furnish blank writs, 

of Superior Court, fees of 

of Supreme Court,, 

CODE OF CIVIL PROCEDURE, printing of 

CODE, ratification of Statutes composing the 

COMPLAINT, copy to be served on defendant, 
the first pleading is, 
what to contain, 
if amended how proceed, 
objection not appearing, 



PAGE. 


BEC, 


1 


Pre. 


9 


12 


9 


12 


26 




28 


70 


37 




37 


91 


55 




79 




84 


22» 


95 




120 




11 


19 


40 


101 


3 


9 


28 


71 


42 


108 


42 


108 


42 


110 


51 




52 


137 


51 


139 


52 


140 


53 


141 


53 


142 


53 


143 


53 


144 


83 


227 


93 


252 


93 


252 


93 


262 


100 


284 


115 


302 


148 


400 


199 


55$ 


201 


565- 


209 


572. 


210 


573 


211 


575 


30 


76 


38 


92 


38 


93 


39 


97 


39 


9& 



IXDEX. 231 

COMPLAINT may be dismissed, for neglect to prosecute actioD, 
and arrest of defendant in action, 

COMPUTATION of time, 

CONSTITUTIONAL Provision for Code of Civil Procedure, 

CONTRACT, action upon when commenced, 

CONDITIONS precedent, how to be pleaded, 

CONSTABLES, fees of 

CONSTRUCTION, rule of, 

CONTROVERSY, how submitted without action, 

CONVEYANCE, if to execute, it must be executed and deposited, 117 

COPY-SHEET defined, 

COPIES OF CODE, how distributed, 

COSTS of proceedings, 

when allowed, cause to plaintiff, 

on several actions on one instrument, 

allowed to defendant, when, 

allowed te either party at discretion of the court, 

amount of, allowed, 

additional allowance of, 

how to be inserted in judgment, 

adjustment of interlocutory, 

against infant plaintiff, 

in action by or against executor, administrator, 

by trustee of express trust, &c., 

in civil actions, by the State, 

in actions by the State, for a private person, 

against assignee after action brought, 

on a settlement, 

on appeals, 

in existing action. 

in special proceedings, 

on appeals from Justices of the Peace, 

against corporations or persons, claiming to be such, 

how awarded, 
CO-TENANT, some barred, others not, when, 
COPY PLEADINS, Judge to be furnished with, 

of judgment roll against corporations, 

COUNSEL to put prayers for instruction in writing, 
COURT, definition of the term, 

regular term of, what meant thereby, 
when to mean Judge, 
Superior, force of term in Code, 
Superior, original, civil jurisdiction of 



AGE. 


6EC. 


91 


248 


140 


369 


132 


348 


1 


Pre. 


16 


34 


46 


122 


209 


570 


145 


391 


120 


215 


117 


306 


199 


556 


210 


568 


104 


273 


105 


276 


105 


276 


106 


277 


106 


278 


106 


279 


108 


280 


109 


283 


109 


283 


110 


286 


110 


287 


110 


287 


111 


288 


111 


289 


111 


290 


112 


291 


112 


292 


112 


293 


112 


294 


112 


295 


142 


377 


196 


515 


20 


52 


85 


231 


143 


379^ 


87 


239 


3 


9 


3 


9 


3 


9 


3 


9 


4 


10 



232 INDEX. 

COURT may determine controversy and interpleader, 

may change place of trial, 

Superior, duties and powers of clerk, 

payment of deposit into, 

X>owers of. as to receivers, 

powers of, as to deposits of money, 

other issues to be tried by the Judge, or, 
COLLECTION, letters of, when to issue and to whom 

COLLECTOR, qualifications of 

authority for 

authority when to cease, 

accounting by, 

failure to account, 

final accounts, 
CHOSE IN ACTION, assignment of, 
CO-PLAINTIFF, examination of, 

co-defendant, examination of, 
CORPORATIONS, judgment on forfeiture against, 

restraining as and appointment of receiver, 

copy of judgment roll against, 

CORONERS, duties of 
fees of, 

COURT, leave of, to issue judgment on execution, 

trial by, judgment how to be given, 

of Justices of the Peace, 

of Justices of the Peace, manner of commencing action, 
CREDITOR, any debtor may pay execution against his 

CRIMINAL ACTION— Constitutional definition of 

calender, first disposed of 
CUMULATIVE DISABILITIES, effect of 

DAMAGES — security upon injunction, 

rates of where damages recoverable, 

defendant may offer to liquidate conditionally, 

how recovered for assumption of office, 
DEATH, cause of action survives, 

action shall not abate, 
DEBTOR, may pay execution against his creditors, 
DEBTORS, joint and several, 
DECISION on motion, 
DEFENDANT, who, 

to be whom, 

may demand judgment of nonsuit, 



PAGE. 


SEC. 


25 


64 


27 


69 


42 


108 


61 


168 


78 


215 


78 


215 


83 


225 


171 


463 


171 


464 


171 


•465 


171 


466 


175 




176 


479 


177 


481 


21 


55 


129 


310 


142 


376 


142 


378 


142 


379 


134 


354 


207 


568 


95 


256 


• 88 


211 


181 


494 


181 




100 


265 


1 


pre. 


84 


229 


14 


28 


68 


192 


92 


250 


125 


320 


141 


373 


18 


43 


24 


64 


100 


265 


34 


87 


131 


345 


10 


13 


24 


61 


30 


78 



INDEX. 233 



DEFENDANT, a foreign corporation, form of summons, 
a resident of the State, but absconding, 
not a resident, but has property, 
allowed to defend before and after judgment, 
to demur on answer, 
who may demur, 
answer of, what to contain, 
may set forth several defences, 
may demur to one or more causes of action, 
when plaintiff ignorant of the name of, 
copy of order of arrest to be delivered to, 
to be discharged on bail or deposit, 
surrender of, 
surrender of, 

when entitled to re-delivery of property, 
sureties, justification of, 
interest of, certificate of to be furnished 
undertaking on the part of, discharge of attachment, 
when cost allowed to 
may offer to liquidate damages conditionally, 

DEFENCE, sham and irrelevant, 
DEFINITION and divisions, 

of action, 

of special proceeding, 

of civil action, 

of criminal action, 

of the term " court, " 

of an order. 

of a motion, 

of " real property, " 

of " personal property, " 

of "property," 

DEMURRER, must specify grounds of objection, 
to answer reply, 
to reply, 
judgment on frivolous, answer and reply, 

DIVISION of remedies, 
actions, 

DISABILITIES, when persons under may sue for real property, 

persons who are under, 

cumulative, effect of, 

must exist when, 

co-existant, 
DISOBEDIENCE of order, how punished, 



•AGE. 


EEC. 


33 


83 


33 


83 


33 


83 


34 


85 


38 


94 


39 


95 


40 


100 


40 


102 


41 


103 


50 


134 


57 


154 


58 


156 


58 


158 


59 


159 


64 


181 


65 


182 


73 


208 


76 


213 


106 


277 


125 


320 


41 


104 


1 




2 


2 


2 


3 


2 


6 


2 


5 


3 


9 


131 


344 


131 


845 


145 


388 


145 


389 


145 


390 


39 


96 


41 


105 


42 


107 


81 


268 


1 


1 


2 


3 


14 


27 


14 


27 


14 


28 


20 


48 


20 


49 


104 


273 



234 INDEX. 

DIVORCE, form of summons for, 
DOCKET,— Judge to keep one, 

to be kept to Superior Court Clerk, 

judgment, 

of issues of fact, 

of criminal action, 
DOCKETING Justice's judgment, 
DORMANT judgruents.how received, 

DUTY of Probate Judge relating to apprentices, 

DUTIES of masters, 

EFFECT of acceptance or refusal of offer, 

of report, review, 
ENACTING clause, 

ENTRY of judgment relating to letters-patent, 
ERRORS or defects not substantial to be disregarded, 
EXAMINATION of debtors of judgment debtor, 

of those having property belonging to judgment debtor, 

of co-plaintiff and co-defendant, 

of parties in action, 

also allowed before trial, 
EXCEPTIONS, how and when taken, 
EXECUTOR'S sureties, 

bond, &c, 

EXECUTOR, an action against, 

not incompetent as witness, 

who disqualified to serve aa, 

may renounce, 

when deemed to have renounced, 

under disqualifications of age or absence, 

accounting by, 

failure to account, 

final accounts, 

on what, and from what time a lien, 

stay of security, 

EXECUTION of the judgment in civil action, 
not suspended when appeal taken, 
levied on personal property, 
satisfied, 

not levied at all, or on real property, 
not docketed, 
within three years, 
after three years to be issued only by leave of court, 



33 


83 


43 


114 


53 


144 


54 


144 


54 


144 


54 


144 


183 


503. 


149 


404 


178 


461 


178 


486 


125 


330 


90 


246 


1 




143 


380 


51 


135 


101 


266 


101 


266 


129 


340 


126 




127 


334 


88 


242 


16 


34 


15 


33 


162 


436 


166 


440 


167 


459 


167 


451 


167 


452. 


175 




176 


479 


177 


481 


187 


505 


95 




114 


300 


149 


407 


149 


406 


150 


408. 


150 


409 


95 


255 


95 


256 



INDEX. 235 



EXECUTION different kinds of, 

to what counties may be issued, 

against a married woman, 

against the person, in what cases, 

form of the, 

to be returnable in sixty days, 

existing laws relating to continued, 

proceedings supplemental to the, 

what property may be applied to the, 

of the judgment, how stayed, 
EXISTING JUDGMENTS, not dormant, may be transferred, 
EXISTING SUITS, actions not to abate, 

actions not to abate, 

order for discovery of property, 

examination of judgment debtor, 

FACT— issues of, 

issues of both fact and law, 
FEE-BILL of attorney abolished, 
FEES, action for, 

of clerks, sheriffs, &c, 

of referees, 

general provisions respecting, 

of officers, by whom and how payable, 

on returns to Secretary of State, 

officers to make returns of, 

half, if convict insolvent, * 

of officerg, how received, 

of Solicitors, 

when to receive salary, 

solicitors, for what, 

of Clerks of Superior Court, 

what, and for what in civil cases, 

what and for what in criminal actions, 

of Register of Deeds, 

of Sheriffs, 

of Coroners, 

of Justices of the Peace, 

of Constables, 

of Jurors, pay and mileage, 

and salaries of Clerks of Supreme Court, 
FEIGNED ISSUES abolished, 
FORMS of actions and suits abolished, 
FORFEITURE— actions for, 

GOODS or chattels, action for, 16 34 



PAGE. 


SEC. 


96 


258 


96 


259 


96 


259 


97 


260 


97 


261 


98 


262 


98 


263 


99 




102 


269 


195 


541 


148 


403 


24 


64 


93 


254 


99 


264 


99 


264 


82 


221 


82 


222 


105 


275 


16 


34 


110 


284 


110 


285 


198 




198 


555 


199 


557 


199 


558 


200 


561 


200 


562 


200 




200 


568 


201 


564 


201 




201 


565 


204 


565 


205 


566 


205 


567 


207 


568 


208 


569 


209 


570 


209 


571 


209 


572 


1 


Pre. 


1 


Pre. 


16 


35 



•236 



INDEX. 



GUARDIAN— Infant to appear by 

or infant-plaintiff to give security, 

ad litem , 

account abilities of, 

not to receive property until security given, 

and ward, 

power over orphans' estate to appoint, 

accounting by, 

failnre to account, 

final accounts of, 

GUARDIANSHIP, proceedings on application for, 
HUSBAND and wife— Witnesses, 



PAGE. 


SEC. 


22 


59 


22 


59 


22 


59 


135 




135 


355 


173 




173 


472 


175 




176 


479 


177 


481 


174 


474 


129 


341 



INSANE person, when may sue for real property, 
INFANT to appear by guardian, 
INFANT-plaintiffor guardian must give security, 
INTEREST in corporations, liable to attachment, 

certificate of defendants, to be furnished, 

not to execute, a witness, 
INSPECTION and copy of books, 

and copy of papers and documents, 
INDENTURE, binding to be by, 

remedy thereon, 

IMPRISONMENT on criminaal charge, when such persons may 
sue for real property, 
false, action for, 

INJURY to any incorporeal hereditament, an action for, 
INJUNCTION, time of stay by, 

by order, 

in what cases, 

at what time it may be granted, 

after answer, 

security upon, 

older to show cause, 

security upon, to suspend business of corporation, 

motion to vacate or modify, 
INSTRUCTIONS, Judge to put in writing, 

prayers for, to be put in writing by counsel, 

ISSUES— Feigned— abolished, 
and mode of trial, 
the different kinds, 
of law 
■of fact, 



14 27 



22 



58 
59 



129 


342 


126 


331 


126 


331 


177 


482 


177 


483 


14 


27 


17 


35 


15 


33 


19 


46 


66 


188 


67 


189 


67 


190 


67 


191 


68 


192 


68 


193 


68 


194 


68 


195 


87 


238 


87 


239 


1 


Pre. 


82 




82 


219 


82 


220 


82 


220 



INDEX. 



237 



ISSUES of both law and fact, law tried first, 
examination of, trial defined, 
how tried, 

other, to be tried by Court or Judge, 
of fact, how to be tried, 
order of disposing of in civil action, 
of fact and matters of law, 
all referable by consent, 

JOINDER of action, 

JOINT-TEN A.NTS, when not barred, 

JUDGE — when meant by word " Court," 

issue of law sent to, 

party to be heard before, 

duty of, an appeal, 

to keep a docket, 

other issues to be trid by court or, 

trial postponed by, in term, when, 

to be furnished with copy-pleadings, &c, 

may direct special findings, when, 

minutes of, motion for new trial on, 

to explain law, but express no opionion on facts, 

to put instructions in writing, 

reference by, 

of Superior Court not present, court to adjourn, 
JUDGES of Supreme Court shall make rules of practice, 

of Superior Court to suggest rules, 

of Superior Court to issue writs of habeas corpus, 

of Probate, 

of Probate, disqualifications to act, 

of Probate, waive of disqualification, 

of Probate, removal of proceedings, 

of Probate, enumeration of powers, 

of Probate, not to act as attorney, 

of Probate, seals used, 

of Probate to keep files, 

of Probate to keep records, . 

of Pncbate, books furnished by Secretary of State, 
JUDGMENT, on decree of United States Court, 

of Justices of the Peace, 

reversed, 

defence after, 

motion for, on answer, 

on motion of fact final, 

and trial in civil action, 



PAGE. 


SEC 


82 


222* 


82 


223 


82 


224 


83 


225 


83 


226 


84 


229 


179 


490 


88 


244 


47 


126 


20 


52 


3 


9 


43 


111 


43 


112 


43 


113 


43 


114 


83 


225 


84 


228 


85 


231 


85 


233 


86 


236 


87 


237 


87 


238 


104 


272 


149 


396 


146 


396 


146 


395 


147 


399 


153 


417 


154 


419 


154 


420 


155 


421 


155 


422 


156 


424 


156 


425 


156 


426 


156 


427 


157 


428 


15 


81 


15 


32 


19 


45 


34 


8-5 


41 


- 106 


44 


115 


79 





238 INDEX. 



JUDGMENT, arpon failure to answer, 
defined, 

on failure of defendant to answer, 
on excess of counter claim, 
on frivolous demurrer, answer or reply, 
manner of extending, 
may be for or against any of the parties, 
may grant defendant affirmative relief, 
against married women, 
in actions for recovery of personal property, 
debtor, examination of, 
debtor, proceeding on denial of indebtedness, 
roll, clerk to make copy and send to Supreme Court Clerk, 
for money, security to stay execution, 
to deliver documents or personal property, 
immediate orders affecting the, 
on appeal, 

in controversy without action, 
how enforced or appealed from, 
debtor dying — his representative may be summoned, 
may be confessed for debts due, 
confession of without action, 
and execution, 
in action for usurping office, 
of forfeiture and eviction to be given, when, 
execution of, how stayed, 
roll, 

JUDGMENTS, how to be pleaded, 
how satisfied, 

on judgment book to be entered by clerk, 
rendered in other courts, entered by clerk, 
indexed by clerk, 
how to be docketed, 
how enforced, 
dormant, how reviewed, 
not dormant, when, 

JURISDICTION, civil of Superior Courts, 
court to have acquired, 
of Supreme Court, 
of Judges of Probate, 
and manner of proceeding in Justice's Courts when sum 

demanded exceeds two hundred dollars, 
over estates of deceased persons, 
when Probate Judge has, over the estate, 
Judge first acquiring to have exclusive, 



PAGE. 


SEC. 


79 




79 


216 


80 


217 


80 


217 


81 


218 


88 


240 


91 


248 


. 91 


248 


91 


248 


92 


251 


99 


264 


103 


271 


115 


302 


115 


304 


116 


305 


119 


318 


119 


314 


120 


316 


120 


317 


121 


318 


123 


325 


123 




123 


327 


141 


370 


144 


385 


195 


541 


93 


253 


44 


115 


46 


121 


93 


252 


93 


252 


93 


252 


93 


254 


93 


257 


149 


404 


151 


411 


3 


9 


36 


90 


151 


413 


153 


418 


182 


498 


161 




161 


433 


161 


434 



INDEX. 



239 



JURY may render special original verdict, when, 

to assess defendant's damages in certain cases, 

trial by, how waived, 

trials, in Courts of Justices of the Peace, 

lists furnished to each Justice, 

box, Justice to keep a 

tried by, demanded, or waived when, 

drawn, and trial postponed, 

summoning of the, 

for the trial of the cause, 

sworn and empaneled, verdict &c. 

less than sis may be a, when, 

fees, deposit of 

adjournment after the return of the 
JURORS, names of, to be deposited in jury box. 

challenge of, 

names of, returned to jury box or destroyed, 

tales, may be summoned, 

not compelled to serve as, out of township, 

serving on trial, &c. 

fees of 
JUSTICES of the Peace.— Courts of 

of the Peace, manner of commencing action in Courts of 

of the Peace, docketing judgments of 

courts, rules of proceedings in, 

judgments removed to another county, how, 

courts, witnesses, penalties, &c. 

of the Peace, general provisions respecting, 

of the Peace within what time to qualify, 

of the Peace removed from township six months to forfeit 
office, 

of the Peace resignation of, 

of the Peace may issue process and try cause elsewhere 

of the Peace may accept office under United States, 

of the Peace punishment of infamous crimes, 

of the Peace filing docket with clerk, 

of the Peace delivery of unfiled docket to successor, 

of the Peace fees of, 

LANDLORD and tenant, relation of, 

when deemed to possession, 
LAWS, issues of, 

issues of, to be tried first, 

Judge to explain, but express no opinion on fact, 

of other States and governments, how proved, 

what repealed and unrepealed, 

repealed, 



PAGE. 


SEC. 


85 


233 


86 


233 


.87 i 


i 238 


190 




190 


517 


190 


518 


191 


520 


191 


521 


191 


522 


191 


523 


192 


527 


192 


529 


193 


532 


193 


533 


191 


519 


191 


524 


192 


525 


192 


526 


192 


530 


192 


531 


209 


571 


181 




181 


495 


183 


508 


184 


' 504 


188 


509 


188 


510 


196 




196 


541 


197 


547 


197 


548 


197 


549 


197 


550 


197 


551 


197 


552 


197 


552 


208 


569 


13 


26 


13 


26 


82 


220 


82 


222 


87 


237 


136 


860 


180 


493 


181 


494 



240 



INDEX. 



LETTERS testamentary, 

of administration with will annexed, 

of administration, to be granted when and to whom, 

of collection, 

of administration, to whom granted, 

of revocation on proof of will, &c, 

of rovocation on ground of disqualification or default, 

how issued and tested, 

of appointment of guardian, 

LIBEL, action for, 

and slander, how stated in complaint, 

and slander, actions in such cases, 
LIMITATION of actions, 

period of, 

pleaded by answer, 

as regards actions for real property, 

as regards actions for real property, 

as regards actions for real property, 

not applicable to Railroads, Canal Companies, &c, 
LIMITATIONS, Chapter 65, Revised Code repealed, 

to what cases the provisions of the Code extends, 
LIS PENDENS, notice of, 
LUNACY, inquisition of, 

MAIL, service by, 

service by, 

sheriffs and coroners may return process by, 
MARRIED WOMAN, when may sue for real property, 

actions by or against, 

husband must be joined in action, 

may sue alone concerning separate property. 

may sue alone in action against husband, 

need not sue by friend, or guardian, 

judgment against, 

execution against. 
MASTER and apprentice, 

duties of, 

misconduct of, 
MISTAKE, relief in case of, 
MONEY, bank notes circulated as, 

MOTION, definition of, 

decision on, 
MOTIONS, how and when made, 
MORTGAGE, action for foreclosure, 



PAGE. 


SBC. 


166 




168 




168 


453 


171 




169 


45 6 


173 


469 


173 


470 


173 


471 


175 


475 


17 


35 


47 


124 


47 


125 


10 


16 


11 


17 


11 


17 


11 


18 


11 


19 


12 


20 


14 


29 


10 


15 


10 


16 


36 


90 


174 


473 


133 


350 


134 


351 


134 


354 


14 


27 


22 


55 


22 


56 


22 


56 


22 


56 


91 


248 


96 


259 


177 




178 


486 


179 


489 


50 


133 


20 


53 


131 


345 


131 


345 


131 


345 


34 


86 



INDEX. 



241 



NON-SUIT, defendant may demand judgment of, 
NOTICE of no personal claim, 

on motion, 

and filing and service of papers, 

how served, 
NUISANCE and waste, actions for, 

writ of abolished, 

by writ of, remedy for injuries heretofore remediable, 

OATH, make return of when, 

oaths, &c, 
OCCUPATION, when presumed to be under legal title, 
OFFER of compromise, 

of defendant to compromise the whole or the part of the 
action, 
OFFICIAL BOND, an action upon, 
OFFICIAL BOND, 
OFFICE, Superior Court Clerk, where to be, 

Superior Court Clerk, when to be open, 
OFFICER, trespass of, 

to require no fee of person sued as pauper, 

entitled to fee in advance, 
ORDINANCE of 14th March, 1868, effected, 
PARTY, to be heard before Judge, 

summoned may answer and defend, 

may examine his adversary as a witness, 

how compelled to attend, 
PARTIES, how designated, 

to civil action, 

to be joined, &c. 

to bills and notes, all or any included in same action, 

compelling to testify, 

to actions in special pleadings, cau witness, 
PARTNERS, joint and several debtors, 

PAPERS, official, to be received by the Clerk of the Superior 
Court, 

in each action to be kept separate and filed together, 

lost or withheld, how supplied, 
PAUPER, power to sue as, how obtained, 
PERSON, no, arrested except as prescribed, 

sued a3 pauper not to pay costs, 

within the age of twenty-one years, when may sue, 

imprisoned on criminal charge, when may sue, 

insane, when may sue, 

who is a feme cwerte, when may sue, 
PERSONS, having title must sue, when, 

16 



PAGE. 


BEC. 


30 


78 


31 


81 


132 


346 


133 




133 


349 


144 




145 


386 


145 


387 


175 


477 


172 


467 


13 


25 


124 


328 


124 




15 


33 


160 


431 


53 


141 


53 


141 


16 


35 


28 


72 


29 


75 


151 


412 


43 


112 


112 


322 


127 


333 


127 


335 


10 


13 


31 




24 


61 


24 


6;5 


131 


345 


129 


31:J 


34 


87 


53 


142 


54 


146 


135 


357 


28 


72 


55 


148 


28- 


72 


14 


27 


14 


27 


14 


27 


14 


27 


12 


20 



242 



INDEX. 



PERSONS, for whom action is brought, 

PERSONAL representative, action against when brought, 

PENALTY, action for, 

for offense committed on any body of water, 

for usurping office or franchise, 
PLAINTIFF, who, 

proviso when judgment for, reversed, 

under disabilities, 

a minor, 

insane, 

imprisoned on criminal charge, 

a married woman, 

may commence new action, 

to give bond, 

failing to file complaint within ten days, 

to be whom, 

may be non-suited, 

to name an attorney, 

ignorant of name of defendant, 

security of, before order of arrest, 

delivery of bail to, 

security to, 

the relief awarded to, 
PLANK ROAD, &c, not barred by limitation, 
PLEADINGS, general rules of, 

to be subscribed and verified, 

how verified, 

how construed, 

items of account, 

irrelevant and redundant matter, 

mistakes in and amendments, 

supplemental, 

&c, how written, 
POSSESSION, thirty years good against State, 

twenty-one years with colorable title, 
• valid against claimants under the State, 

adverse for twenty years, bars suit, 

adverse for twenty years, gives title, 

presumed when, 

by tenant, the possession of landlord, 
POWER of reierees, 

PRACTICE— In actions pending July 3rd, 1868, 
in actions pending at ratification of Code, 
in actions pending, founded on contract, 
in actions pending, not founded on contract, 

PRAYERS by counsel, for instructions to be put in writing 



PAGE. 


SEC. 


129 


3S9 


15 


32 


16 


35 


26 


67 


142 


375 


10 


13 


12 


21 


18 


42 


18 


42 


18 


42 


18 


42 


18 


42 


19 


45 


28 


71 


30 


77 


23 


60 


30 


78 


31 


89 


50 


134 


57 


152 


59 


162 


64 


179 


92 


349 


14 


29 


44 




44 


116 


44 


117 


44 


119 


45 


11 


4G 


120 


48 




51 


136 


142 


375 


11 


18 


11 


18 


11 


19 


13 


23 


13 


23 


13 


25 


13 


26 


135 


356 


3 


8 


3 


8 


3 


8 


3 


8 


87 


239 



INDEX. 



243 



PROCEEDINGS upon judgment on issue of law, 

upon claim of another party to property, 

on denial of indebtedness, 

cost of, 

stayed when security given, 

miscellaneous in civil actions, 

stay of, 
PROBATE courts, jurisdiction and powers, 

Judges of, 

Judges of, jurisdiction of, 

of Deeds, 

of Deeds, how made, 

court, how judge may appear in, 

of Deeds when land lies in two or more counties, 

Judge of when disqualified to act, 

Judge of when has jurisdiction over estates, 

Judge of when acquiring jurisdiction to have it exclusive, 

of wills, 

how wills admitted to, 

how far conclusive, 

who may apply for, 

who may apply when executor does not, 

what to show on application to, 

auditing by Judge of, 
PROOF— failure of when, 

PROOFS and examination in writing of witnesses, 
PROPERTY, personal, claim and delivery of, 

personal, delivery of, 

requisition to sheriff to take and deliver, 

how taken, when concealed, 

how kept, 

claim of, by third person, 

attachments on, foreign corporations, 

non-residents, 

absconding or concealed defendants, 

perishable, proceedings in case of, 

incapable of manual delivery, 

personal, judgment in action for recovery of, 

may be ordered to be applied to the execution, 

perishable may be soldj notwithstanding appeal, 

personal, definition of, 

real, definition of, 

personal, execution levied on, 

PROCEDURE, Code of Civil, printing of, 
PROVISO— in case of judgment for plaintiff reversed, 



PAGE. 


BEC. 


89 


242 


103 


271 


103 


271 


104 


273 


117 


308 


120 




131 


345 


153 




153 


417 


153 


418 


157 


429 


157 


429 


156 


423 


160 


430 


160 


432 


161 


433 


161 


434 


161 




161 


435 


162 


438 


162 


439 


162 


440 


162 


441 


49 


130 


162 


457 


63 




63 


176 


63 


178 


65 


184 


66 


185 


66 


186 


69 


197 


69 


197 


69 


167 


73 


205 


73 


207 


92 


251 


102 


169 


118 


311 


145 


389 


144 


384 


149 


406 


210 


573 


12 


21 



244 



INDEX. 



PROVISIONS, general, 

of the Revised Code applicable to actions for partition, 

of the Revised Code applicable to actions for waste, 

of the Revised Code applicable to actions in arrest and 

trial, 
of the Revised Code applicable to Attachment, 
respecting executors, 

PUBLICATION to be made of warrant of attachment, . 
of notices, time of, how computed, 

PUBLIC OFFICES, action against for trespass, 

RAILROADS, &c, not barred by limitations 
RATES of damages, where damages recoverable, 
RATIFICATION of this act, 

of Statutes composing this Code, 
RECEIVERS, Judge may appoint, 
RECORDS to be kept by Superior Court Clerk, 

examined by Solicitor, 
REFERENCE may be compulsorily ordered when, 
REFEREES, trial by, 

how chosen, 

who may be, 

fees of, 

powers of, 
REFUSAL to testify, effect of, 
RELIEF, action for, 

not otherwise provided for, 

in case of mistake, 

to be awarded to the plaintiff, 
RELATOR, when to be joined as plaintiff, 

assumption of office by, 
REMEDIES, provisionals in civil actions, 

provisional, 

how divided, 

not merged, 
REPLY, demurrer to answer, 
REPORT of referee, 

when allowed, 
REGULATIONS respecting existing suits, 
RESIGNATION of Justice of the Peace, 
REGISTER OF DEEDS, fees of 

RESTITUTION, 

RESTITUTION, 

RULE of construction of laws, 

RULES and practice inconsistent with this act abrogated, 



120 


bi.r, 


143 


382 


144 


384 


189 


511 


190 


516 


172 




70 


198 


136 


359 


16 


35 


14 


29 


92 


250 


25 


64 


211 


575 


102 


270 


53 


143 


54 


147 


89 


245 


89 




90 


247 


90 


247 


110 


384 


129 


337 


16 


34 


17 


37 


50 


132 


92 


249 


140 


368 


141 


370 


55 




78 




1 


1 


2 


7 


41 


105 


91 


247 


109 


282 


148 




197 


548 


205 


566 


119 


314 


196 


544 


145 


391 


146 


393 



INDEX. 245 



SEALED INSTRUMENT, action on, against principal, 
SECRETARY of State to furnish books, 

of State fees on returns to, 
SECURITY upon injunction, damages, 

to suspend business of corporation, 

on obtaining warrant, 

must be given on documents or personal property, 

when judgment is to deliver real propeity, 

being given, proceedings stayed, 

to be approved and to justify, 

must be given or deposit made on appeal, unless waived, 

to stay execution on judgment for money, 
SEIZURE within twenty years, when necessary, 
SEPARATE trials, 
SERVICE, when complete, 

proof of, 

proof of, by certificate of sheriff, 

proof of, in case of publication, affidavit of, 

proof of, admission of defendant, 

by mail, 

by mail, 
SEVEN YEARS, what actions must be brought within, 
SHERIFF— affidavit and order delivered to, 

deposit with the sheriff, 

when liable as bail, 

proceedings on judgment against, 

liable to bail, 

requisition to, to take and deliver the property, 

bond to, an attachment, 

when to return warrant with his proceedings, 

fees of, 

duties of, 

penalty on, for failing to return, 

fees of, 
SIX YEARS, what actions must be brought within, 
SPECIAL proceedings, definition of, 

and general verdict defined, 

findings with general verdict, former to control, 
STATE, when it will not sue for real property, 

thirty years possession bar to suit, 

twenty-one years possession nnder colorable title bar to 
suit, 

claimants under, also barred, 

claims against, 

claims against, manner of prosecuting, 
STATUTE, limitation of action, 



AGE. 


SEC. 


15 


31 


54 


145 


199 


557 


68 


192 


C8 


194 


72 


202 


116 


305 


117 


307 


117 


308. 


118 


310 


115 


303 


115 


304 


12 


22 


85 


230 


35 


88 


35 


89 


35 


89 


35 


89 


8(5 


89 


134 


350 


135 


351 


15 


32 


57 


154 


61 


167 


61 


171 


62 


172 


62 


173 


63 


178 


76 


211 


77 


214 


110 


284 


134 


354 


199 


557 


205 


567 


15 


33 


2 


8 


85 


232 


86 


234 


11 


18 


11 


18 


11 


18 


11 


19 


152 


415 


152 


416 


16 


34 



24G 



INDEX. 



STATUTES, how to be pleaded, 
STATUTORY provisions, inconsistent, repealed, 
STAY by injunction, 

by statute, 
SLANDER, action for, 

and libel how stated in complaint, 

and libel actions in such cases, 
SOLICITOR to examine records, 

fees of, 

when to receive fees — salary, 

fees — for what, 
SUBMITTING a controversy without action, 
SUBSEQUENT pleadings, 
SUBPOENAS for witnesses, 
SUMMONS, by whom issued, 

form of, 

date of, 

what to contain, 

number of days to run, 

return of, 

copy of complaint to be served with, 

manner of service, 

manner of service on a corporation, 

manner of service on infant under 14, 

manner of service on defendant of unsound mind, 

manner of service by publication, 

form of, when defendant a foreign corporation, 

form of, when defendant a resident of the State but absent 
therefrom, 

form of, when defendant not a resident but has property, 

form of, when subject is real or personal property, 

form of, in action for divorce, 

manner and effect of publication, 

when service complete, 

proof of service, 

form of, 

to be accompanied by affidavit of amount due, 

in Justices Courts, 

in Justices Courts, by whom issued, 

service and return of, 
SUPERIOR COURT, meaning of term in Code, 

cause transferred to, by Probate Judge, 

Clerk, fees of, 
SUPERIOR COURTS, civil jurisdiction of, 

terms of, 

duration of Terms, 

terms of First District, 



PAGE. 


B EC 


46 


123 


146 


392 


19 


46 


19 


46 


17 


36 


47 


124 


47 


125 


54 


147 


200 




200 


563 


201 


564 


120 


215 


122 


323 


133 


349 


28 


71 


29 


73 


29 


73 


29. 


74 


29 


74 


29 


75 


30 


76 


32 


82 


32 


82 


32 


82 


32 


82 


32 


82 


33 


83 


33 


83 


33 


83 


33 


83 


33 


83 


33 


84 


35 


86 


35 


89 


121 


320 


122 


321 


181 


495 


181 


496 


181 


497 


3 


9 


106 


447 


201 


565 


4 


10 


4 


11 


4 


11 


1 


14 



INDEX. 



247 



SUPERIOR COURT, terms of Second District, 

terms of Third District, 

terms of Fourth District, 

terms of Fifth District, 

terms of Sixth District, 

terms of Seventh District, 

terms of Eighth District, 

terms of Ninth District, 

terms of Tenth District, 

terms of Eleventh District, 

terms of Twelfth District, 
SUPREME COURT, jurisdiction of, 

cases, how taken t", 
SUITS, not transferred, to abate, 

transferred, how proceeded with, 
SURETIES, exceptions to, 

justification of defendant's 

. qualifications and justifications, 

actions against, 

TENANT, possession by, possession of landlord, 
TESTIMONY of party may be rebutted, 

no' responsive to the inquiries, 
TIME of commencing action, 

of war not counted, 

of stay not counted, 

pending probate of will not counted, 

how computed, 

double when served by mail, 

for publication of notice, how computed, 
TITLE, when persons having, must sue, 

answer to, 
THREE YEARS, actions to be within, 
THIRTY YEARS possession good against the State, 
TRANSFER and appeal of issues of fact, 

and appeal no bond required, 
TRESPASS, action for limitation of 

of office, 
TRIAL, change of place of 

change of place of, by order of court, 

change of place of, by consent of parties, 

mode of, on issue, 

defined, 

may be postponed by clerk, when, 

may be postponed by Judge in term, when 

separate, 

new, on Judges' minutes, 

by the Court, 



AGE. 


SEC. 


4 


11 


5- 


11 





11 


6 


11 


6 


11 


6 


11 


7 


11 


7 


11 


8 


11 


8 


11 


8 


11 


151 


413 


152 


414 


148 




148 


401 


64 


180 


65 


182 


65 


183 


16 


8f 


13 


26 


127 


336 


128 


338 


10 




19 


44 


19 


46 


19 


47 


132 


348 


134 


352 


136 


359 


12 


20 


182 


500 


16 


34 


11 


18 


179 




180 


491 


16 


34 


16 


35 


27 


69 


27 


69 


27 


69 


82 




82 


223 


83 


227 


84 


228 


8£ 


2:!0 


S(i 


236 


88 





248 



INDEX. 



TRIAL, by jury, Low waived, 

by the court, judgment bow to be given, 

by referees, 

mode of, 

for felony in progress at close of term, term to be prolonged 

new, appeal in Justices' Courts, 
TWENTY-ONE TOARS possession under colorable title, ' 
TWENTY-ONE YEARS, possession under colorable title, 

years seizure within, when necessary, 

years adverse possession bars suit, 

years adverse possession give title, 

UNDERTAKINGS may be in one instrument or several, 
must be filed, 
where to be filed, 
same, to be given, 

VARIANCE, material in pleading, ' *3 

immeterial in pleading, 
VERDICT, general and special defined, 

general and special where jury-nnay render, 

on special findings, former to control 

entry of, 
VOUCHERS, 
WARRANT of attachment, by whom granted, 

when granted by Justice of the Peace, 

in what case it may be issued, 

security on obtaining, 

to whom directed and what to require, 

in executing, mode of procedure, 

in perishable property, mode of procedure, 

when sheriff to return with proceedings thereon, 
AV1LLS, probate of. 

how entitled to probate, 

executor not incompetent as witness to, 

production of, compelled by process, 

made without State, how proved, 

of subject or citizen of another country, 

of citizen of this State proved elsewhere, 
WILL, of testa'tor to be observed, 
WITNESSES required to testify when, 

of party compelled to attend, 

husband and wife, 
examination of, 
interest not to exclude a 
parties to actions may, except in certain cases, 
mbpeenas for, 

penalties, &c, in Justice's Courts, 
■compensations of, 
WOMAN married, may sue for real property, 



PAGE. 


8E0. 


88 


240 


88 
89 


.^41 


90 


246 


147 


397 


192 


528 


11 


18 


11 


19 


12 


22 


13 


23 


13 


23 


118 


*309 


119 


312 


135. 


358 


195 


542 


48 ' 


' 128 ' 


49 


129 


85 


232 


85 


233 


86 


234 


86 


234 


176 


480 


70 


199 


71 


200 


71 


201 <« 


72 


202 


72 


203 


72 


204 


73 


205 


77 


214 


161 




161 


435 


162 


436 


164 


442 


164 


443 


164 


444 


165 


445 


168 


455 


101 


269 


101 


268 


129 
129 
129 
129 
133 
188 
209 
14 


341 

342 

343 . 
349 ' 
510 *